- User contributions [en]

Freedom of Religion/History/Country sources/Weberian Thought

2024-07-03T02:18:46Z

Bmra2018:

{{Right section
|right=Freedom of Expression
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Weberian Thought
|pageLevel=Breakout
|contents=Regarded as one of the founders of the field of sociology, the influence of Max Weber (1864-1920) on contemporary thinking about politics and society has been immense. Throughout an extensive body of work, perhaps the main theme of Weber’s thought is the rapid political and economic evolution that European society was undergoing in his lifetime, and the question of how freedom can still exist in this increasingly rationalized and bureaucratized new order.

When describing his fears for the survival of freedom in the modern world, Weber refers to “individually differentiated conduct” and “individualistic freedom” being curtailed by the process of rationalization (Levine 1981, 16). Since expressing oneself and one’s sentiments is what individualized (i.e., unique to and illustrative of one’s personal qualities) conduct fundamentally consists of, Weber’s concern for individual autonomy can be translated as a concern for freedom of expression. However, one significant difference between Weber and other philosophers of freedom, from John Locke to John Rawls, is that Weber does not think of freedom in terms of rights that one is entitled to. For Weber, freedom of expression is akin to the agency to express ideas and bring them to fruition: it is less a right everyone has simply by virtue of being born, and more a quest to fulfill.

Not only that, but Weber’s ultimate focus is on the state rather than the individual: while his goal is the realization of individual expression, he regards this goal as something to be achieved through developments on a national or societal level, instead of on a personal one. Politics, for him, is “a uniquely human activity, one with the potential both to create and to manifest the responsibility and dignity of individuals in an increasingly secularized world” (Warren 1988, 31).

In his 1919 address “Politics as a Vocation,” Weber begins his exploration of how politics functions in the modern day with his famous formulation that a state is defined by its monopoly on the legitimate use of force: “the modern state is a compulsory association which organizes domination” (Weber 1919, 4). This view certainly lacks the idealism of theories grounded in the idea that the state is under a social contract with its people to uphold their rights. Nevertheless, what is often missed is that Weber’s theory requires not just for the state to be more powerful than any competitors who might also seek to exert force, but for it to exercise power in a way that is (or at least widely recognized as) normatively legitimate.

This discussion of state legitimacy would, it should be noted, have felt particularly prescient to audiences in Weber’s native Germany. Weber delivered his address only a year after the end of World War I, when the monarchy of Kaiser Wilhelm II had been broadly discredited by the devastating loss of the war, and the German people had found themselves living in a vaguely democratic republic that many on both the right and left felt had no grounds to claim their allegiance. In “Politics as a Vocation,” Weber presents three possible sources of legitimate authority: one based on tradition, one on a system of rules or laws, and one on a leader’s “extraordinary and personal gift of grace (charisma)” (Weber 1919, 2). It is this last one that is of most interest concerning how freedom of expression fits into Weber’s views. According to Weber, charismatic legitimacy consists of “absolutely personal devotion and personal confidence in revelation, heroism, or other qualities of individual leadership.” Historically, it has been displayed by “the elected war lord, the plebiscitarian ruler, the great demagogue, or the political party leader” (Weber 1919, 2).

Charismatic legitimacy is, therefore, most relevant to Weber’s vision of the fulfillment of freedom of expression through the state – one where both leaders and those under them interact with politics as a vocation, or (per his term) a calling, a word with distinctly religious connotations. Weber further defines a calling by distinguishing between ‘occasional’ and vocational political engagement: “we are all ‘occasional’ politicians when we cast our ballot or consummate a similar expression of intention, such as applauding or protesting in a ‘political’ meeting, or delivering a ‘political’ speech, etc. The whole relation of many people to politics is restricted to this” (Weber 1919, 5). Political expression requires politicians or other politically engaged people to approach politics as a vocation – as a spiritual mission that one lives to fulfill.

However, to Weber, charismatic leadership alone is insufficient for the popular will to be expressed. Although Weber is cognizant of the problems of bureaucracy, he recognizes that a charismatic leader ultimately needs an effective state apparatus to carry out their promises. To him, “the bureaucratic state order is especially important; in its most rational development, it is precisely characteristic of the modern state” (Weber 1919, 4). The seeming contradiction can potentially be resolved if one considers that throughout his works Weber invokes two distinct types of freedom, each of which interact differently with the inescapable process of the rationalization and bureaucratization of society. One is ‘situational’ freedom, referring to external constraints on one’s movements or actions; the other is freedom in the much more expansive sense of autonomy, or “the condition in which individual actors choose their own ends of action” (Levine 1981, 16). While it is easy to imagine how the rise of factory jobs and big government would restrict situational freedom, Weber believes that the modern state’s effect on personal autonomy is actually positive. This conception of autonomy can be more broadly defined as the ability to be guided by one’s own ideas; Weber calls it “a series of ultimate decisions through which the soul…chooses its own fate” (Levine 1981, 21). It can thus be said that to have autonomy, by Weber’s definition, is to have freedom of expression.

In “Politics as a Vocation,” Weber identifies a state bureaucracy as ultimately critical for the state to enable citizens’ political aspirations to come to fruition – for citizens to have autonomy, in the sense of choosing their own fates. Weber expounds on this idea in other writings on bureaucracy, as in his statements that bureaucratic organization “has usually come into power on the basis of a leveling of economic and social differences,” and that it “inevitably accompanies mass democracy” (Gerth and Mills 1946, 224). This is because mass democracy necessitates “the characteristic principle of bureaucracy: the abstract regularity of the execution of authority” (Gerth and Mills 1946, 224). Weber further elaborates on this with phrases like “‘equality before the law’ in the personal and functional sense,” the “horror of ‘privilege,’” and “the principled rejection of doing business ‘from case to case’” (Gerth and Mills 1946, 224). In today’s terms, this concept might be summarized as the rule of law: having institutions in place to ensure the state effectively and consistently carries out its functions. Weber certainly seems right that a bureaucracy in this sense would be a precondition for popular expression. As an example, in “Politics as a Vocation,” he approvingly cites the 1883 Civil Service Reform Act as creating a professional bureaucracy in the United States, replacing the “spoils” system where successive administrations distributed offices based on political allegiance (Weber 1919, 7).

Nonetheless, Weber’s account of freedom of expression, where the effective operation of the state serves as the avenue for expression of public sentiments, still seems lacking in other ways. Under Weber’s conception of the state, the people’s voice is only expressed indirectly: “the demos itself, in the sense of an inarticulate mass, never 'governs' larger associations; rather, it is governed, and its existence only changes the way in which the executive leaders are selected and the measure of influence which the demos, or better, which social circles from its midst are able to exert upon the content and the direction of administrative activities by supplementing what is called 'public opinion'” (Gerth and Mills 1946, 225).

Then again, this may not have been as much of a concern for Weber. For Weber, political expression entails a progression towards political maturity; the realization of the people’s aspirations is more of a responsibility on their part than a right. Indeed, throughout his body of work, Weber displays a deep pessimism about the political capacities of the German people. According to him (as he wrote in the 1890s), if there is any hope, it lies in the economically ascendant but politically unassertive bourgeoisie: the decaying aristocracy can no longer be trusted with power, while the working classes are led by those who “have no organic connection with the class they claim to represent” and whose “revolutionary posture in fact acts against the further advancement of the working class towards political responsibility” (Giddens 1972, 17).

Giddens goes on to explain Weber’s viewpoint thus: “Weber saw as the principal question affecting the future of Germany [as] that of whether the economically prosperous bourgeoisie could develop a political consciousness adequate enough to undertake the leadership of the nation. … there could be no question of refounding German liberalism upon a 'natural law' theory of democracy. He rejected, moreover, the classical conception of 'direct' democracy, in which the mass of the population participate in decision-making.” Ultimately, “in the modern state, leadership must be the prerogative of a minority: this is an inescapable characteristic of modern times. Any idea 'that some form of democracy’ can destroy the ‘domination of men over other men’ is ‘utopian’” (Giddens 1972, 18).

Perhaps an even bigger problem with Weber’s freedom of expression is that he necessarily views the expression of the popular (which is to say, majority) will as entailing the expression of the individual will. In his address, he never considers situations where they might not, in fact, be one and the same – where an individual might dissent from the majority. Weber’s inattention to the protection of minority views is a consequence of his lack of discussion of individual rights, or indeed of any other limits on government power (like independent legislative and judicial branches, or even regular competitive elections). He may have died before he could see them, but the 20th century would provide numerous examples of how the unfettered state is anything but conducive to freedom, by any definition of the term. While the aim of “Politics as a Vocation” may just be to explain how the state functions and acquires legitimacy, its failure to consider any substantial limits on what the bureaucratic state can do is ultimately a second reason why it is lacking as an account of freedom of expression.

In his book, Mommsen describes Weber’s view thus: “Max Weber considered the natural-law justification of democracy and the liberal constitutional state to be outmoded and an insufficient basis for a modern theory of government. The ‘rights of mankind’ were… ‘extremely rationalized fanaticisms.’” Weber acknowledged that the principle of human rights had done much good, but felt its value was limited in the modern reality: “[Weber] believed that he believed that the axioms of natural law were no longer providing clear directions for a just social order under the conditions of higher capitalism. He also felt that ‘the old individualist principles of inalienable human rights’ had lost much of their power of persuasion under the conditions of modern industrial society. He did not hesitate, on occasion, to set them aside” (Mommsen 1984, 392-393).

Another review describes these shortcomings in Weber’s vision of freedom of expression as less flaws in Weber’s reasoning, and more “symptoms of real challenges for democratic theory” (Warren 1988, 31). Weber may very well have been correct in his preoccupation with the inadequacies of democracy in modern society. Nonetheless, as Warren puts it, “these conflicts would have been less had Weber elaborated his liberal commitments in substantially democratic directions rather than the elitist direction he in fact chose” (Warren 1988, 32). As the world learned from bitter experience, the problems of democracy can only be addressed by expanding democratic participation and rights, to as wide a range of people as possible, and not by restricting them.

There is much in Weber’s political thought that is insightful, and even prescient. In his warnings of the dangers that a hyper-rationalized society posed to freedom of expression, Weber stands out from the Enlightenment thinkers who came before him, for whom rationalization must invariably lead to freedom by liberating humanity from the tyranny of dogma and superstition (Levine 1981, 5). That being said, even if it may have seemed reasonable at the time and much of the criticisms of it come with the benefit of hindsight, his account of freedom of expression is incomplete, in that it only envisions an indirect political expression for the vast majority of citizens, and neglects to recognize the need to protect dissenting voices from the state through robust limits on state power.

References:

Gerth, Hans H., and C. Wright Mills. From Max Weber: Essays in Sociology. New York: Oxford University Press, 1946.

Giddens, Anthony. Politics and Sociology in the Thought of Max Weber. London: Macmillan Press, Ltd., 1972.

Levine, Donald. “Rationality and Freedom: Weber and Beyond.” Sociological Inquiry, 51, no. 1 (1981): 5-25, https://claremont.illiad.oclc.org/illiad/pdf/668358.pdf

Mommsen, Wolfgang. Max Weber and German Politics, 1890-1920. Translated by Michael Steinberg. Chicago: University of Chicago Press, 1984.

Warren, Mark. “Max Weber’s Liberalism for a Nietzschean World.” The American Political Science Review, 82, no. 1 (1988): 31-50, https://www-jstor-org.ccl.idm.oclc.org/stable/pdf/1958057.pdf?refreqid=excelsior%3Ab0b313bfe50f0c00080b3af5edb29a18&ab_segments=&origin=&initiator=&acceptTC=1

Weber, Max. 1919. “Politics as a Vocation.” In From Max Weber: Essays in Sociology, edited and translated by Hans H. Gerth and C. Wright Mills, 77-128. New York: Oxford University Press, 1946, http://fs2.american.edu/dfagel/www/class%20readings/weber/politicsasavocation.pdf
}}

Freedom of Expression/Dependants

2023-08-11T10:23:06Z

Bmra2018:

{{Right section
|right=Freedom of Expression
|section=Conflicts with other Rights
|question=Dependants
|questionHeading=Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?
|pageLevel=Question
|contents=Although the idea of freedom of expression, as a right distinct from other rights, was only elucidated in the mid-20th century, multiple theorists advocated for something closely resembling freedom of expression long before that, even if they did not use the term. From these sources we get a sense of what freedom of expression entails, and of its value as a foundation for so many of the other rights that citizens exercise in a democratic society. What seems less evident, however, is the rights that freedom of expression is itself founded on – and therefore, what rights one must have to be able to exercise it. Based on an analysis of the meaning of expression, those rights include freedom of speech and of the press, freedom of assembly, and freedom of religion.

Freedom of expression was first explicitly guaranteed, or at least widely accepted for the first time, in the system of international law established in the aftermath of World War II. Article 19 of the 1948 Universal Declaration of Human Rights reads, “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (Universal Declaration of Human Rights 1948, 5). The 1966 International Covenant on Civil and Political Rights similarly states that “everyone shall have the right to freedom of expression;” this consists of the “freedom to seek, receive and impart information and ideas of all kinds… orally, in writing or in print, in the form of art, or through any other media of his choice” (International Covenant on Civil and Political Rights 1966, 10).

Long before this, though, ideas hinting at a right to hold and express opinions can be found in political literature. In 1644, after Parliament passed an ordinance requiring pre-publication review of any printed material by the government, English poet-philosopher John Milton protested by anonymously publishing the polemic Areopagitica, in which he wrote, “give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties” (Milton 1644, 57). In 1789, James Madison wrote an early draft of the First Amendment which read, “the people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments…” (Read 2009). In his seminal 1859 treatise On Liberty, John Stuart Mill defended the freedom to express socially disfavored opinions: “the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it” (Mill 1859, 19). United States Supreme Court Justice Louis Brandeis wrote in 1927: “[the Founding Fathers] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile…that public discussion is a political duty, and that this should be a fundamental principle of the American government” (Whitney v. California 1927, 274). Ten years later, his colleague Justice Benjamin Cardozo wrote that the “freedom of thought, and speech” is “the matrix, the indispensable condition, of nearly every other form of freedom” (Palko v. Connecticut 1937, 302).

Together, these quotes imply a multi-pronged freedom of expression, which can be seen mirrored in the definitions (“seek, receive, impart”) given in the international statutes that guarantee this right today. Freedom of expression can thus be understood as comprised of the freedom to form opinions (and therefore the freedom to access the information required to do so), the freedom to proclaim those opinions, and the freedom to share and debate those opinions with one’s fellow citizens. They likewise give a sense of how crucial freedom of expression is to the functioning of democracy, and indeed to liberty itself; that it acts as a safeguard that protects all other rights.

Therefore, to answer the question of what rights are needed for one to have freedom of expression, we can ask what rights are necessary for the realization of each of the above prongs. First and foremost, we can intuitively appreciate that freedom of speech and of the press are essential for the ability to form, declare, and discuss opinions. This double-barreled right is intimated in the aforementioned writings: Milton advocates the liberty to “utter,” and Madison and both Justices specifically refer to speech; the necessity of a concomitant freedom of the press is supported by Milton’s call for a liberty to know, and by Madison’s reference to the freedom to write and publish one’s views in a manner distinct from speech. Freedom of assembly (referenced by Brandeis) is similarly crucial for the practical ability to exercise the right to expression: a citizen cannot fully acquire information and form opinions based on it, or fully participate in debates about those opinions, without the freedom to interact with as many diverse voices as they possibly can. Finally, though not specifically mentioned above, freedom of religion is required as well. This is not only because one topic that many people wish to express the strongest of opinions about is religion, but because religious expression often encompasses actions as well as speech and writing, and thus would not be sufficiently protected without its own discrete supportive right.

The most foundational body of law laying out these rights is the First Amendment of the United States Constitution, which has inspired language in the constitutions of countless other countries. Moreover, due to the uniquely American practice of judicial review, US Supreme Court cases can provide illustrative examples of how these rights are vital to the freedom of expression.

In the early history of First Amendment jurisprudence, the Supreme Court proved amenable to claims that speech and the press could be restricted if there was a “clear and present danger” to national security or other critical national interests, as outlined in the 1919 case Schenck v. United States, and subsequently reinforced with Abrams v. United States that same year. Issued amid the nationalist fervor of World War I, both cases concerned people punished for distributing anti-war writings under the 1917 Espionage Act, which broadly criminalized interfering with the war effort or undermining public morale (Schenck v. United States 1919, Abrams v. United States 1919). Likewise in Whitney v. California (1927), the Court upheld a conviction under California’s “criminal syndicalism” law, which criminalized speech that advocated for social or political change by force, even if it was in general and imprecise terms. In that case, the convicted person had been a member of a Communist organization that broadly advocated revolution against the government, but insisted she had never personally called for or supported violence (Whitney v. California 1927).

The tide began to turn with Stromberg v. California (1931), where the Court struck down a state law banning the display of red flags, and notably incorporated the right to free speech against the states for the first time. The Court found that a “sign, symbol, or emblem” like a flag was protected speech under the First Amendment, and further wrote that free speech is a central component of the liberty protected by the Constitution: “It has been determined that the conception of liberty … embraces the right of free speech” (Stromberg v. California 1931, 283). The Court subsequently relied on that right to free speech to offer a passionate defense of the “opportunity for free political discussion,” which it called “essential to the security of the Republic” (Stromberg v. California 1931, 283). Still, it took decades for the overly permissive “clear and present danger” test for limits on free speech to be effectively superseded by a more protective standard of “imminent lawless action,” which the Court invoked in the 1969 case Brandenburg v. Ohio. Explicitly overturning Whitney, the Court wrote that Ohio’s criminal syndicalism statute punishes “mere advocacy” (which can be translated as political expression), and thus is unconstitutional based on the First Amendment freedoms of speech and the press (Brandenburg v. Ohio 1969, 395).

Apart from national security/law and order, the predominant justification for government attempts to restrict speech and the press has tended to be some form of offense or social disruption caused by the expression. The Court invoked something like the freedom of expression when it ruled for a plaintiff arrested for wearing a jacket with the words “fuck the draft” in Cohen v. California (1971), finding that California could not exercise a “governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression,” and justified this statement under the First Amendment right to free speech (Cohen v. California 1971, 403). In Miller v. California (1973), the Court largely overturned obscenity laws restricting printed material (which had famously ensnared classics like Ulysses, Lady Chatterley’s Lover, and Tropic of Cancer due to sexual content), similarly deriving a wide-ranging right to express one’s views in writing from the First Amendment: “in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression” (Miller v. California 1973, 413).

Freedom of assembly, as provided for in the First Amendment right to peaceably assemble, is another supportive right for freedom of expression. This right was notably litigated before the Supreme Court in the 1937 case De Jonge v. Oregon, in which the Court upheld the plaintiff’s right to speak at a peaceful meeting of the Communist Party (and incorporated this right to the states for the first time). In its ruling, the Court defended the importance of “free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means” (De Jonge v. Oregon 1937, 299). Of this opportunity the Court said, “therein lies the security of the Republic, the very foundation of constitutional government” (De Jonge v. Oregon 1937, 299).

The final right undergirding the freedom of expression is freedom of religion. Multiple rulings have found that the Free Exercise Clause of the First Amendment imposes a high standard for restrictions on religious acts. For example, in Sherbert v. Verner (1963), the Court ruled in favor of a plaintiff who was denied unemployment benefits after losing her job for refusing to work on Saturdays on account of her Seventh-Day Adventist faith. The Court’s opinion indicated that a right to expression stems from the First Amendment right to free exercise of religion: “the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression;” therefore, to “condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith” is impermissible because it “effectively penalizes the free exercise of her constitutional liberties” (Sherbert v. Verner 1963, 374). Subsequent rulings would similarly protect religious life choices and behaviors on the grounds of a Free Exercise Clause right to religious expression, such as Wisconsin v. Yoder (1972), where the Court found that Wisconsin could not require parents to send their children to school past eighth grade when it was contrary to their Amish beliefs (Wisconsin v. Yoder 1972). Likewise in Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah (1993), the Court overturned a city ordinance targeting ritual animal sacrifice by practitioners of the Caribbean religion Santeria (Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah 1993).

In Roman Catholic Archdiocese of Brooklyn v. Cuomo (2020), concerning COVID-19 capacity restrictions on houses of worship, the Court found that even a temporary abridgement of the ability to attend religious services constitutes an “irreparable harm” to free exercise rights, and thus must meet the highest level of judicial scrutiny (Roman Catholic Archdiocese of Brooklyn v. Cuomo 2020, 5). Most recently, the Court made clear that the Free Exercise Clause protects religious expression in Kennedy v. Bremerton School District (2022), where it ruled in favor of a high school football coach’s practice of praying on the field after games: “The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts’” (Kennedy v. Bremerton School District 2022, 12).

While a clearly delineated freedom of expression is relatively recent, these examples show how it has been identified decades and centuries prior, in a wide variety of situations. The rights of freedom of speech and the press, assembly, and religion have all been highlighted as essential to free expression. These rights are therefore crucial not just for themselves, but because of the right to expression that grows out of them, that being the groundwork without which any definition of a free society cannot exist.

References:

Abrams v. United States, 250 U.S. 616 (1919), Justia, https://supreme.justia.com/cases/federal/us/250/616/ (accessed June 9, 2023)

Brandenburg v. Ohio, 395 U.S. 444 (1969), Justia, https://supreme.justia.com/cases/federal/us/395/444/ (accessed June 9, 2023)

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), Justia, https://supreme.justia.com/cases/federal/us/508/520/ (accessed June 9, 2023)

Cohen v. California, 403 U.S. 15 (1971), Justia, https://supreme.justia.com/cases/federal/us/403/15/ (accessed June 9, 2023)

De Jonge v. Oregon, 299 U.S. 353 (1937), Justia, https://supreme.justia.com/cases/federal/us/299/353/ (accessed June 9, 2023)

International Covenant on Civil and Political Rights, 1966, UN Office of the High Commissioner of Human Rights, https://www.ohchr.org/sites/default/files/ccpr.pdf

Kennedy v. Bremerton School District, 597 U.S. ___ (2022), Justia, https://supreme.justia.com/cases/federal/us/597/21-418/#:~:text=Justia%20Summary&text=The%20Constitution%20neither%20mandates%20nor,it%20allows%20comparable%20secular%20speech (accessed June 9, 2023)

Mill, John Stuart. 1859. On Liberty. Kitchener, Ontario, Canada: Batoche Books Limited, https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf

Miller v. California, 413 U.S. 15 (1973), Justia, https://supreme.justia.com/cases/federal/us/413/15/ (accessed June 9, 2023)

Milton, John. 1644. Areopagitica. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 2006, http://files.libertyfund.org/files/103/1224_Bk.pdf

Palko v. Connecticut, 302 U.S. 319 (1937), Justia, https://supreme.justia.com/cases/federal/us/302/319/ (accessed June 9, 2023)

Read, James. 2009. “James Madison.” The First Amendment Encyclopedia, Free Speech Center, Middle Tennessee State University, https://www.mtsu.edu/first-amendment/article/1220/james-madison#:~:text=%22The%20people%20shall%20not%20be,of%20liberty%2C%20shall%20be%20inviolable

Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___ (2020), Justia, https://supreme.justia.com/cases/federal/us/592/20a87/#:~:text=Justia%20Summary&text=In%20challenges%20under%20the%20Free,requirement%20of%20neutrality%20to%20religion (accessed June 9, 2023)

Schenck v. United States, 249 U.S. 47 (1919), Justia, https://supreme.justia.com/cases/federal/us/249/47/ (accessed June 9, 2023)

Sherbert v. Verner, 374 U.S. 398 (1963), Justia, https://supreme.justia.com/cases/federal/us/374/398/ (accessed June 9, 2023)

Stromberg v. California, 283 U.S. 359 (1931), Justia, https://supreme.justia.com/cases/federal/us/283/359/ (accessed June 9, 2023)

Universal Declaration of Human Rights, 1948, United Nations, https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf

Whitney v. California, 274 U.S. 357 (1927), Justia, https://supreme.justia.com/cases/federal/us/274/357/ (accessed June 9, 2023)

Wisconsin v. Yoder, 406 U.S. 205 (1972), Justia, https://supreme.justia.com/cases/federal/us/406/205/ (accessed June 9, 2023)
}}

Freedom of Religion/History/Country sources/Benthamite Utilitarianism

2023-08-05T07:02:31Z

Bmra2018:

{{Right section
|right=Freedom of the Press
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Benthamite Utilitarianism
|pageLevel=Breakout
|contents=Jeremy Bentham (1748-1832) was an English philosopher whose work would prove foundational to the development of modern liberalism, as both a moral and a political vision. Bentham’s unique brand of liberalism is most strongly associated with his guiding principle of utilitarianism: that what is best is what brings the most utility to the greatest number of people. Despite what might today be recognized as problematic implications of an absolute adherence to this principle, Bentham’s utilitarianism made him a strong advocate of social and political freedoms, under the reasoning that these freedoms are a net good to society.

Bentham defines his utilitarian philosophy in his 1781 tract An Introduction to the Principles of Morals and Legislation. By his central concept of utility, he means “that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness (all this in the present case comes to the same thing), or (what comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered” (Bentham 1781, 14-15). Notably, he insists that utility can only accrue to the individual: “The interest of the community is one of the most general expressions that can occur in the phraseology of morals: no wonder that the meaning of it is often lost. … The community is a fictitious body, composed of the individual persons who are considered as constituting, as it were, its members. The interest of the community then is, what is it? —the sum of the interests of the several members who compose it” (Bentham 1781, 15). Therefore, a good government is one that acts in the ultimate interests of its individual constituents, and not for some vague notion of the good of the community or the state.

Presaging his protege John Stuart Mill, Bentham seeks to defend press freedom through the lens of his utilitarian ideal. Bentham identifies an unfettered press as the essential guarantor against what he terms misrule, by ensuring protection against government oppression and the accountability of leaders to the people they represent. This is perhaps best seen in his commentary on the suppression of liberal movements in Spain, and by extension in his native England as well. Referring to a report of a Madrid newspaper editor being prosecuted for his work, Bentham declares that “whatsoever evil can ever result from this liberty [of the press], is everywhere, and at all times, greatly outweighed by the good” (Bentham 1820). This is because the liberty of the press “operates as a check upon the conduct of the ruling few; and in that character constitutes a controlling power, indispensably necessary to the maintenance of good government” (Bentham 1820). To Bentham, the benefits of good government are “plainly infinite” (Bentham 1820).

Bentham does not further elaborate on these benefits in his letter on the situation in Spain, but elsewhere in his work he consistently identifies good governance with participatory democracy, with the ability of the people to impact their government, and consequently with freedom in the broadest sense. For Bentham, “in the late stages of his long career nothing was more important to ‘good politics’ than the influence of public opinion on those with political power” (Cutler 1999, 322). He even wrote of an (allegorical) Public Opinion Tribunal that would issue “judgments” of politicians, to ensure that politics takes the people’s unfiltered and all-inclusive sentiments into account: “No one can know her interests better than herself. Thus, if a utilitarian public policy is to emerge from an aggregation of those interests, the constitution should provide the institutions that permit all persons to communicate their interests to government equally” (Cutler 1999, 324). Unlike many of his contemporaries, Bentham places such high value on government by and for the people, that he insists that the government has a duty to be responsive to the people even when public opinion is misguided. He was not naïve; to him, “[self-determination] does not require certainty in [the people’s] judgments of prospective utility … The institutions of government, therefore, ought to allow the public to react to what their government is doing, constantly steering closer and closer to providing for their interests” (Cutler 1999, 324).

When it comes to the purported harms of a free press, Bentham points out that prosecutions for criticizing the government are traditionally justified as a response to an insult to the honor of the state or its functionaries, and that this is regarded as a threat to the integrity of the state (Bentham 1820). Indeed, rulers have historically tended to punish defamation of the government or its representatives more harshly than defamation of private individuals, and to treat aspersions cast on the government as a whole or on a higher ranked official as more serious than those cast on a lower ranked official. Bentham considers this nonsensical: he argues that the harms to a discrete number of high-profile individuals who may find themselves maligned are far eclipsed by the much greater benefits that a free press brings to a much wider range of people. He even notes that public figures who find themselves unfairly targeted by the press have a built-in remedy commensurate with the rank of their position, since their status affords them distinct advantages in rebutting any allegations, which a private person does not have (Bentham 1820).

Moreover, far from handicapping the function of the state by impugning its reputation, a free press actually does the opposite. For a real world illustration of his reasoning, Bentham points to the United States, where the freedom of journalists to speak against the government is not only constitutionally protected but considered inalienable from public life, but which he nevertheless considers better governed than even his own country; he even calls the young nation the only country that truly has good governance. Thus, Bentham elucidates a utilitarian account of freedom of the press: the cumulative benefit to individuals is far greater than the cumulative harm. Put another way, in an ideal government where one can feel assured that the laws are just, a good citizen’s aim should be “to obey punctually; to censure freely” (Schofield 2019, 43).

Bentham does recognize narrow circumstances where the press can be censured for defamation, but he holds that this punishment should be applied in the reverse of how it has typically been: defamation of a private person should be treated as more severe than defamation of a state official. In fact, Bentham lays out a standard of proof for defamation of a public figure that is remarkably similar to the actual malice standard laid out by the US Supreme Court more than a century later: namely, the statement in question must be not just untrue but “the result of willful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness” (Schofield 2019, 45). Presumably, he would likewise support the modern jurisprudence that mere negligence of the falsity of a statement is sufficient proof in the case of a non-public figure.

Benthamite utilitarianism, it must be said, does not necessarily anticipate all the problems with today’s mass media and its role in guiding the reins of government. For one thing, Bentham does not consider that the press does not just report public opinion but shapes it (often quite intentionally); he also does not ask how public policy should incorporate the views of experts when they conflict with the public mood, or how it should protect the right of minority views to also be heard and compete for influence. Nonetheless, Bentham’s work offers a straightforward and persuasive account of the value of a press free from state interference, giving a highly compelling defense of this fundamental human right at a time of conservative retrenchment and reaction throughout Europe.

References:

Bentham, Jeremy. 1781. An Introduction to the Principles of Morals and Legislation. Kitchener, Ontario, Canada: Batoche Books Limited, 2000.

Bentham, Jeremy. October 7, 1820. “To the Spanish People: Letter I.” Classical Utilitarianism Website, University of Texas, September 24, 2003, https://www.laits.utexas.edu/poltheory/bentham/bsp/bsp.l01.html

Cutler, Fred. “Jeremy Bentham and the Public Opinion Tribunal.” Public Opinion Quarterly, 63, no. 3 (1999): 321-346, https://academic.oup.com/poq/article-abstract/63/3/321/1902496?redirectedFrom=fulltext#no-access-message

Schofield, Philip. “Jeremy Bentham on Freedom of the Press, Public Opinion, and Good Government.” Scandinavica, 58, no. 2 (2019): 39-57, https://discovery.ucl.ac.uk/id/eprint/10105424/1/13223-jeremy-bentham-on-freedom-of-the-press-public-opinion-and-good-government.pdf
}}

Freedom of Religion/History/Country sources/Rwanda

2023-08-05T03:38:47Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Rwanda
|pageLevel=Breakout
|contents=Rwanda provides for freedom of association in its 1962 constitution, promulgated shortly after independence. Under Article 19, “all citizens have the right to freely form associations or societies, subject to… the formalities [laid down by] laws and regulations.”

Nouvelles Constitutions Africaines. “Constitution de la Republique Rwandaise.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/noucoaf0001&collection=cow&index=alpha/N_cowbooks&id=15.
}}

Freedom of Religion/History/Country sources/Russia

2023-08-05T03:37:57Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Russia
|pageLevel=Breakout
|contents=Possibly the first mention of freedom of association in the law of the Russian state is in the October Manifesto, issued by Tsar Nicholas II in response to the mass unrest of the Revolution of 1905. The Manifesto pledged to guarantee to all Russian citizens “the essential foundations of civil freedom, based on the principles of genuine inviolability of the person, freedom of conscience, speech, assembly, and association.”

“Manifesto of October 17, 1905.” Seton Hall University, July 24, 2023, https://academic.shu.edu/russianhistory/index.php/Manifesto_of_October_17th,_1905#:~:text=The%20disturbances%20that%20have%20taken,is%20dangerous%20to%20Our%20state.
}}

Freedom of Religion/History/Country sources/Romania

2023-08-05T03:35:46Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Romania
|pageLevel=Breakout
|contents=Romania protects freedom of association in its first constitution, adopted in 1866. Under Article 27, “Romanians have the right to associate, [in accordance with] the laws that regulate the exercise of this right.”

“Constitutiunea Romaniei din 1866.” Constitutia Romaniei, July 24, 2023, https://www.constitutia.ro/const1866.htm.
}}

Freedom of Religion/History/Country sources/Qatar

2023-08-05T03:34:44Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Qatar
|pageLevel=Breakout
|contents=The first mention of freedom of association in Qatar’s laws is found in the Permanent Constitution of the State of Qatar, promulgated in 2004. Article 45 says that “the right of citizens to establish association is guaranteed in accordance with the conditions and circumstances set forth in the law.”

Qatar Ministry of Foreign Affairs. “Permanent Constitution of the State of Qatar.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzqa0002&id=2&men_tab=srchresults.
}}

Freedom of Religion/History/Country sources/Norway

2023-08-05T03:33:11Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Norway
|pageLevel=Breakout
|contents=The Constitution of Norway, which was initially enacted in 1814 (making it the world’s second oldest constitution to still be in effect today, after the United States Constitution), was amended around 2014 to guarantee the right to freedom of association. Under Article 101, “everyone has the right to form, join, and leave associations, including trade unions and political parties.” Before this, Norway pledged to uphold freedom of association when it ratified the International Covenant on Civil and Political Rights in 1972.

“The Constitution, as laid down on 17 May 1814 by the Constituent Assembly at Eidsvoll and subsequently amended, most recently in May 2014.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzno0023&id=1&collection=cow&index=.

UN Treaty Body Database. “Ratification Status for CCPR – International Covenant on Civil and Political Rights.” Office of the UN High Commissioner for Human Rights, July 24, 2023, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CCPR&Lang=en.
}}

Freedom of Religion/History/Country sources/North Macedonia

2023-08-05T03:31:15Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=North Macedonia
|pageLevel=Breakout
|contents=Freedom of association is enumerated in the constitution of the Republic of North Macedonia, passed in 1991 shortly after independence from Yugoslavia (when the country was called the Republic of Macedonia). Under Article 20, “citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions.” Citizens may “freely establish associations of citizens and political parties, join them, or resign from them.” Earlier, the 1946 Constitution of the Federal People’s Republic of Yugoslavia, of which North Macedonia was a constituent republic as the People’s Republic of Macedonia, protected freedom of association in Articles 20 and 27.

“Constitution of the Federal People’s Republic of Yugoslavia.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/cyugo0001&id=11&men_tab=srchresults.

“Constitution of the Republic of Macedonia.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzmk0010&id=10&men_tab=srchresults.
}}

Freedom of Religion/History/Country sources/North Korea

2023-08-05T03:28:54Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=North Korea
|pageLevel=Breakout
|contents=The Constitution of the Democratic People’s Republic of Korea, adopted in 1948, purports to grant freedom of association to its citizens. Under Article 13, citizens have the freedom of “assembly, and freedom to form associations, or participate in public demonstrations.” The article specifically says that “every citizen shall have the freedom of organizing and joining democratic political parties, trade unions, cooperative associations, and physical culture, cultural, technical, and scientific organizations.”

Central Intelligence Agency. “Constitution of the Democratic People’s Republic of Korea.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzkp0005&collection=cow.
}}

Freedom of Religion/History/Country sources/Nicaragua

2023-08-05T03:27:06Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Nicaragua
|pageLevel=Breakout
|contents=The first mention of freedom of association in Nicaraguan law is found in the 1838 Political Constitution of the Sovereign, Free, and Independent State of Nicaragua, promulgated shortly after the country’s final independence. In Article 14, the constitution states that “popular gatherings that have as [their] object any honest pleasure, the discussion concerning politics, or to examine the public conduct of the [state] functionaries” cannot be impeded.

“Political Constitution of the Sovereign, Free, and Independent State of Nicaragua.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzni0040&collection=cow.
}}

Freedom of Religion/History/Country sources/Niger

2023-08-05T03:25:36Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Niger
|pageLevel=Breakout
|contents=Freedom of association is found in the first Constitution of Niger, enacted in 1960 shortly after independence. Under Article 7, “political parties and groups shall be instrumental in the expression of the suffrage. They shall be formed and shall carry on their activities freely on condition that they respect the principles of national sovereignty and democracy and the laws of the Republic.”

“Constitution of Niger.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzne0002&id=1&men_tab=srchresults.
}}

Freedom of Association/History/Country sources/Nigeria

2023-08-05T03:24:45Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Nigeria
|pageLevel=Breakout
|contents=Chapter IV Section 37 of the constitution of the Second Republic ([[Probable year:: 1979]]) states that “every person shall be entitled to assemble freely and associate with other persons, and any political party, trade union, or other association for the protection of his interests.”

Freedom of association is enumerated in the first constitution of independent Nigeria, enacted in 1960. Under Article 25, “every person shall be entitled to … associate with other persons and in particular he may form or belong to trade unions and other associations for the protection of his interests.” The article subsequently lays out broad reservations on this article, precluding its application to laws “reasonably justifiable in a democratic society” that are in the interest of “defense, public safety, public order, public morality, or public health,” as well as those “for the purpose of protecting the rights and freedoms of other persons.”

“The Constitution of the Federation of Nigeria.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzng0011&id=1&men_tab=srchresults.
}}

Freedom of Religion/History/Country sources/New Zealand

2023-08-05T03:23:24Z

Bmra2018:

Freedom of Association/History/Country sources/New Zealand

2023-08-05T03:22:37Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=New Zealand
|pageLevel=Breakout
|contents=Part 2 Section 17 of the Bill of Rights Act ([[Probable year:: 1990]]) states that, “Everyone has the right to freedom of association.”

Although New Zealand does not have a codified constitution, the first explicit mention of freedom of association in New Zealand law is the Bill of Rights Act of 1990, Article 17 of which states that “everyone has the right to freedom of association.” The country had earlier promised to uphold freedom of association by its 1978 ratification of the International Covenant on Civil and Political Rights, which protects this right in Article 22.

“International Covenant on Civil and Political Rights.” Office of the UN High Commissioner for Human Rights, July 24, 2023, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights#:~:text=Article%2019,-1.&text=Everyone%20shall%20have%20the%20right,other%20media%20of%20his%20choice.

New Zealand Legislation. “New Zealand Bill of Rights Act 1990.” Parliamentary Counsel Office, July 24, 2023, https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html.

UN Treaty Body Database. “Ratification Status for CCPR – International Covenant on Civil and Political Rights.” Office of the UN High Commissioner for Human Rights, July 24, 2023, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CCPR&Lang=en.
}}

Freedom of Religion/History/Country sources/New Zealand

2023-08-05T03:20:54Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=New Zealand
|pageLevel=Breakout
|contents=Although New Zealand does not have a codified constitution, the first explicit mention of freedom of association in New Zealand law is the Bill of Rights Act of 1990, Article 17 of which states that “everyone has the right to freedom of association.” The country had earlier promised to uphold freedom of association by its 1978 ratification of the International Covenant on Civil and Political Rights, which protects this right in Article 22.

“International Covenant on Civil and Political Rights.” Office of the UN High Commissioner for Human Rights, July 24, 2023, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights#:~:text=Article%2019,-1.&text=Everyone%20shall%20have%20the%20right,other%20media%20of%20his%20choice.

New Zealand Legislation. “New Zealand Bill of Rights Act 1990.” Parliamentary Counsel Office, July 24, 2023, https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html.

UN Treaty Body Database. “Ratification Status for CCPR – International Covenant on Civil and Political Rights.” Office of the UN High Commissioner for Human Rights, July 24, 2023, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CCPR&Lang=en.
}}

Freedom of Religion/History/Country sources/Oman

2023-08-05T03:19:21Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Oman
|pageLevel=Breakout
|contents=Limited freedom of association is protected under the Basic Statute of the State, instituted in 1996, which effectively functions as a constitution for Oman. Under Article 33, “the freedom of forming societies on a national basis and for legitimate objectives and by peaceful means – provided that it is not in conflict with the provisions and objectives of this Basic Statute – is guaranteed in accordance with the terms and conditions stipulated by the [Statute].” Further, “it is prohibited to form societies the activities of which are adverse to the order of society, secret or of a military nature.”

“The Basic Statute of the State.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzom0002&id=1&collection=cow&index=.
}}

Freedom of Religion/History/Country sources/Panama

2023-08-05T03:17:48Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Panama
|pageLevel=Breakout
|contents=Freedom of association is protected under the first constitution of Panama, enacted in 1904 shortly after the country’s independence. Article 20 guarantees Panamanians’ right to “to form associations for all the legitimate purposes of life.”

Comparative Constitutions Project. “Constitution of the Republic of Panama.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzpa0048&id=1&men_tab=srchresults.
}}

Freedom of Religion/History/Country sources/Papua New Guinea

2023-08-05T03:16:16Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Papua New Guinea
|pageLevel=Breakout
|contents=Papua New Guinea makes provision for freedom of association in its constitution, enacted upon independence in 1975. Under Section 47, every individual has the right to freely associate with “political parties, industrial organizations, or other associations.” This right, however, is listed under the heading of “qualified rights,” so that its application is subjected to several qualifications laid out in Section 38.

“Constitution of the Independent State of Papua New Guinea.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/COWShow?collection=cow&cow_id=322.
}}

Freedom of Religion/History/Country sources/Philippines

2023-08-05T03:14:52Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Philippines
|pageLevel=Breakout
|contents=The constitution of the First Philippine Republic, also known as the Malolos Constitution and passed in 1899 during the struggle for independence from Spain, represents the first mention of freedom of association in Philippine law. Under Article 20, no Filipino may be deprived of the “right of association for purposes of human life and which are not contrary to public morals.”

The LawPhil Project. “1899 Constitution of the Republic of the Philippines (Malolos Convention).” Arellano Law Foundation, July 24, 2023, https://lawphil.net/consti/consmalo.html.
}}

Freedom of Religion/History/Country sources/Paraguay

2023-08-05T03:11:53Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Paraguay
|pageLevel=Breakout
|contents=Freedom of association is recognized in Paraguayan law in the 1870 constitution. Under Article 18, Paraguayans have the right to “associate with each other for useful purposes,” though “subject to the proper rules and regulations.”

Comparative Constitutions Project. “Constitution of the Republic of Paraguay.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/zzpy0009&id=2&men_tab=srchresults.
}}

Freedom of Religion/History/Country sources/Peru

2023-08-05T03:10:31Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Peru
|pageLevel=Breakout
|contents=Peru protects freedom of association in the Political Constitution of the Republic of Peru, promulgated in 1856. According to Article XXVIII, “all citizens possess the right of meeting together peaceably, whether in public or in private, provided public order be not compromised.”

British and Foreign State Papers (1856-1857). “Political Constitution of the Republic of Peru – Lima, October 13, 1856.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/bfsprs0047&id=1171.
}}

Freedom of Religion/History/Country sources/Afghanistan

2023-08-05T03:08:40Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Poland
|pageLevel=Breakout
|contents=Freedom of association was initially protected in the 1921 constitution, passed following the establishment of the first modern Polish state in the aftermath of World War I. Article 108 says that citizens have “the right of meeting and of association, as well as that of founding societies and unions;” it then says that “the application of these rights is regulated by law.”

“The Constitution of the Polish Republic.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpl0051&collection=cow.
}}

Freedom of Religion/History/Country sources/Afghanistan

2023-08-05T03:07:30Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Peru
|pageLevel=Breakout
|contents=Peru protects freedom of association in the Political Constitution of the Republic of Peru, promulgated in 1856. According to Article XXVIII, “all citizens possess the right of meeting together peaceably, whether in public or in private, provided public order be not compromised.”

British and Foreign State Papers (1856-1857). “Political Constitution of the Republic of Peru – Lima, October 13, 1856.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/bfsprs0047&id=1171.
}}

Freedom of Association/History/Country sources/Portugal

2023-08-05T03:06:04Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Portugal
|pageLevel=Breakout
|contents=Article 46 of the Portugese Constitution ([[Probable year:: 1976]]) :

“Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.”

“Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.”

“No one shall be obliged to belong to an association, or be coerced to remain therein by any means.”

“Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted.”

Portugal first protected freedom of association in the Constitution of the Portuguese Monarchy, promulgated in 1838. Under Article XIV, “all citizens have the right of assembling together conformably to the laws.” The article subsequently lays out specifications for how it is to be applied, and concludes with “a special law shall regulate, in other respects, the exercise of this right.”

British and Foreign State Papers (1838-1839). “Constitution of the Portuguese Monarchy – Promulgated at Lisbon, April 4, 1838.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?collection=cow&handle=hein.cow/bfsprs0027&id=775&men_tab=srchresults.
}}

Freedom of Religion/History/Country sources/Palau

2023-08-05T03:03:40Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Palau
|pageLevel=Breakout
|contents=Palau protects freedom of association in the Constitution of the Republic of Palau, enacted in 1981. Under Article IV, Section 3, “the government shall take no action to deny or impair the right of any person to … associate with others for any lawful purpose including the right to organize and to bargain collectively.”

“Constitution of the Republic of Palau.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpu0001&id=5&collection=cow&index=.
}}

Freedom of Religion/History/Country sources/Palau

2023-08-05T03:03:19Z

Bmra2018:

{{Right section
|right=Freedom of Religion
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Palau
|pageLevel=Breakout
|contents=Palau protects freedom of association in the Constitution of the Republic of Palau, enacted in 1981. Under Article IV, Section 3, “the government shall take no action to deny or impair the right of any person to … associate with others for any lawful purpose including the right to organize and to bargain collectively.”

“Constitution of the Republic of Palau.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpu0001&id=5&collection=cow&index=.
}}

Freedom of Religion/History/Country sources/Afghanistan

2023-08-05T02:58:55Z

Bmra2018:

Freedom of Religion/History/Country sources/Palau

2023-08-05T02:55:59Z

Bmra2018:

Freedom of Religion/History/Country sources/Palau

2023-08-05T02:54:47Z

Bmra2018:

{{Right section
|right=Freedom of Religion
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Palau
|pageLevel=Breakout
|contents=Freedom of religion is protected for Palauan citizens under Article IV Section 1 which states “[t]he government shall take no action to deny or impair the freedom of conscience or of philosophical or religious belief of any person nor take any action to compel, prohibit or hinder the exercise of religion” (constituteproject.org).

“Palau 1981 (Rev. 1992) Constitution.” Constitute. Accessed July 26, 2023. https://www.constituteproject.org/constitution/Palau_1992.

Palau protects freedom of association in the Constitution of the Republic of Palau, enacted in 1981. Under Article IV, Section 3, “the government shall take no action to deny or impair the right of any person to … associate with others for any lawful purpose including the right to organize and to bargain collectively.”

“Constitution of the Republic of Palau.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpu0001&id=5&collection=cow&index=.
}}

Freedom of Religion/History/Country sources/Palau

2023-08-05T02:54:01Z

Bmra2018:

{{Right section
|right=Freedom of Religion
|section=Legal Codification
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Palau
|pageLevel=Breakout
|contents=Freedom of religion is protected for Palauan citizens under Article IV Section 1 which states “[t]he government shall take no action to deny or impair the freedom of conscience or of philosophical or religious belief of any person nor take any action to compel, prohibit or hinder the exercise of religion” (constituteproject.org).

“Palau 1981 (Rev. 1992) Constitution.” Constitute. Accessed July 26, 2023. https://www.constituteproject.org/constitution/Palau_1992.

Palau protects freedom of association in the Constitution of the Republic of Palau, enacted in 1981. Under Article IV, Section 3, “the government shall take no action to deny or impair the right of any person to … associate with others for any lawful purpose including the right to organize and to bargain collectively.”

“Constitution of the Republic of Palau.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpu0001&id=5&collection=cow&index=.
}}

Freedom of Religion/History/Country sources/Palau

2023-08-05T02:51:28Z

Bmra2018:

{{Right section
|right=Freedom of Religion
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Palau
|pageLevel=Breakout
|contents=Freedom of religion is protected for Palauan citizens under Article IV Section 1 which states “[t]he government shall take no action to deny or impair the freedom of conscience or of philosophical or religious belief of any person nor take any action to compel, prohibit or hinder the exercise of religion” (constituteproject.org).

“Palau 1981 (Rev. 1992) Constitution.” Constitute. Accessed July 26, 2023. https://www.constituteproject.org/constitution/Palau_1992.

Palau protects freedom of association in the Constitution of the Republic of Palau, enacted in 1981. Under Article IV, Section 3, “the government shall take no action to deny or impair the right of any person to … associate with others for any lawful purpose including the right to organize and to bargain collectively.”

“Constitution of the Republic of Palau.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpu0001&id=5&collection=cow&index=.
}}

Freedom of Expression/Dependants

2023-08-04T19:16:18Z

Bmra2018: Created page with "{{Right section |right=Freedom of Expression |section=Conflicts with other Rights |question=Dependants |questionHeading=Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this? |pageLevel=Question |contents=Although the idea of freedom of expression, as a right distinct from other rights, was only elucidated in the mid-20th century, multiple theorists advocated for something closely resembling freedom of..."

{{Right section
|right=Freedom of Expression
|section=Conflicts with other Rights
|question=Dependants
|questionHeading=Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?
|pageLevel=Question
|contents=Although the idea of freedom of expression, as a right distinct from other rights, was only elucidated in the mid-20th century, multiple theorists advocated for something closely resembling freedom of expression long before that, even if they did not use the term. From these sources we get a sense of what freedom of expression entails, and of its value as a foundation for so many of the other rights that citizens exercise in a democratic society. What seems less evident, however, is the rights that freedom of expression is itself founded on – and therefore, what rights one must have to be able to exercise it. Based on an analysis of the meaning of expression, those rights include freedom of speech and of the press, freedom of assembly, and freedom of religion.

Freedom of expression was first explicitly guaranteed, or at least widely accepted for the first time, in the system of international law established in the aftermath of World War II. Article 19 of the 1948 Universal Declaration of Human Rights reads, “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (Universal Declaration of Human Rights 1948, 5). The 1966 International Covenant on Civil and Political Rights similarly states that “everyone shall have the right to freedom of expression;” this consists of the “freedom to seek, receive and impart information and ideas of all kinds… orally, in writing or in print, in the form of art, or through any other media of his choice” (International Covenant on Civil and Political Rights 1966, 10).

Long before this, though, ideas hinting at a right to hold and express opinions can be found in political literature. In 1644, after Parliament passed an ordinance requiring pre-publication review of any printed material by the government, English poet-philosopher John Milton protested by anonymously publishing the polemic Areopagitica, in which he wrote, “give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties” (Milton 1644, 57). In 1789, James Madison wrote an early draft of the First Amendment which read, “the people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments…” (Read 2009). In his seminal 1859 treatise On Liberty, John Stuart Mill defended the freedom to express socially disfavored opinions: “the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it” (Mill 1859, 19). United States Supreme Court Justice Louis Brandeis wrote in 1927: “[the Founding Fathers] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile…that public discussion is a political duty, and that this should be a fundamental principle of the American government” (Whitney v. California 1927, 274). Ten years later, his colleague Justice Benjamin Cardozo wrote that the “freedom of thought, and speech” is “the matrix, the indispensable condition, of nearly every other form of freedom” (Palko v. Connecticut 1937, 302).

Together, these quotes imply a multi-pronged freedom of expression, which can be seen mirrored in the definitions (“seek, receive, impart”) given in the international statutes that guarantee this right today. Freedom of expression can thus be understood as comprised of the freedom to form opinions (and therefore the freedom to access the information required to do so), the freedom to proclaim those opinions, and the freedom to share and debate those opinions with one’s fellow citizens. They likewise give a sense of how crucial freedom of expression is to the functioning of democracy, and indeed to liberty itself; that it acts as a safeguard that protects all other rights.

Therefore, to answer the question of what rights are needed for one to have freedom of expression, we can ask what rights are necessary for the realization of each of the above prongs. First and foremost, we can intuitively appreciate that freedom of speech and of the press are essential for the ability to form, declare, and discuss opinions. This double-barreled right is intimated in the aforementioned writings: Milton advocates the liberty to “utter,” and Madison and both Justices specifically refer to speech; the necessity of a concomitant freedom of the press is supported by Milton’s call for a liberty to know, and by Madison’s reference to the freedom to write and publish one’s views in a manner distinct from speech. Freedom of assembly (referenced by Brandeis) is similarly crucial for the practical ability to exercise the right to expression: a citizen cannot fully acquire information and form opinions based on it, or fully participate in debates about those opinions, without the freedom to interact with as many diverse voices as they possibly can. Finally, though not specifically mentioned above, freedom of religion is required as well. This is not only because one topic that many people wish to express the strongest of opinions about is religion, but because religious expression often encompasses actions as well as speech and writing, and thus would not be sufficiently protected without its own discrete supportive right.

The most foundational body of law laying out these rights is the First Amendment of the United States Constitution, which has inspired language in the constitutions of countless other countries. Moreover, due to the uniquely American practice of judicial review, US Supreme Court cases can provide illustrative examples of how these rights are vital to the freedom of expression.

In the early history of First Amendment jurisprudence, the Supreme Court proved amenable to claims that speech and the press could be restricted if there was a “clear and present danger” to national security or other critical national interests, as outlined in the 1919 case Schenck v. United States, and subsequently reinforced with Abrams v. United States that same year. Issued amid the nationalist fervor of World War I, both cases concerned people punished for distributing anti-war writings under the 1917 Espionage Act, which broadly criminalized interfering with the war effort or undermining public morale (Schenck v. United States 1919, Abrams v. United States 1919). Likewise in Whitney v. California (1927), the Court upheld a conviction under California’s “criminal syndicalism” law, which criminalized speech that advocated for social or political change by force, even if it was in general and imprecise terms. In that case, the convicted person had been a member of a Communist organization that broadly advocated revolution against the government, but insisted she had never personally called for or supported violence (Whitney v. California 1927).

The tide began to turn with Stromberg v. California (1931), where the Court struck down a state law banning the display of red flags, and notably incorporated the right to free speech against the states for the first time. The Court found that a “sign, symbol, or emblem” like a flag was protected speech under the First Amendment, and further wrote that free speech is a central component of the liberty protected by the Constitution: “It has been determined that the conception of liberty … embraces the right of free speech” (Stromberg v. California 1931, 283). The Court subsequently relied on that right to free speech to offer a passionate defense of the “opportunity for free political discussion,” which it called “essential to the security of the Republic” (Stromberg v. California 1931, 283). Still, it took decades for the overly permissive “clear and present danger” test for limits on free speech to be effectively superseded by a more protective standard of “imminent lawless action,” which the Court invoked in the 1969 case Brandenburg v. Ohio. Explicitly overturning Whitney, the Court wrote that Ohio’s criminal syndicalism statute punishes “mere advocacy” (which can be translated as political expression), and thus is unconstitutional based on the First Amendment freedoms of speech and the press (Brandenburg v. Ohio 1969, 395).

Apart from national security/law and order, the predominant justification for government attempts to restrict speech and the press has tended to be some form of offense or social disruption caused by the expression. The Court invoked something like the freedom of expression when it ruled for a plaintiff arrested for wearing a jacket with the words “fuck the draft” in Cohen v. California (1971), finding that California could not exercise a “governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression,” and justified this statement under the First Amendment right to free speech (Cohen v. California 1971, 403). In Miller v. California (1973), the Court largely overturned obscenity laws restricting printed material (which had famously ensnared classics like Ulysses, Lady Chatterley’s Lover, and Tropic of Cancer due to sexual content), similarly deriving a wide-ranging right to express one’s views in writing from the First Amendment: “in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression” (Miller v. California 1973, 413).

Freedom of assembly, as provided for in the First Amendment right to peaceably assemble, is another supportive right for freedom of expression. This right was notably litigated before the Supreme Court in the 1937 case De Jonge v. Oregon, in which the Court upheld the plaintiff’s right to speak at a peaceful meeting of the Communist Party (and incorporating this right to the states for the first time). In its ruling the Court defended the importance of “free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means” (De Jonge v. Oregon 1937, 299). Of this opportunity the Court said, “therein lies the security of the Republic, the very foundation of constitutional government” (De Jonge v. Oregon 1937, 299).

The final right undergirding the freedom of expression is freedom of religion. Multiple rulings have found that the Free Exercise Clause of the First Amendment imposes a high standard for restrictions on religious acts. For example, in Sherbert v. Verner (1963), the Court ruled in favor of a plaintiff who was denied unemployment benefits after losing her job for refusing to work on Saturdays on account of her Seventh-Day Adventist faith. The Court’s opinion indicated that a right to expression stems from the First Amendment right to free exercise of religion: “the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression;” therefore, to “condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith” is impermissible because it “effectively penalizes the free exercise of her constitutional liberties” (Sherbert v. Verner 1963, 374). Subsequent rulings would similarly protect religious life choices and behaviors on the grounds of a Free Exercise Clause right to religious expression, such as Wisconsin v. Yoder (1972), where the Court found that Wisconsin could not require parents to send their children to school past eighth grade when it was contrary to their Amish beliefs (Wisconsin v. Yoder 1972). Likewise in Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah (1993), the Court overturned a city ordinance targeting ritual animal sacrifice by practitioners of the Caribbean religion Santeria (Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah 1993).

In Roman Catholic Archdiocese of Brooklyn v. Cuomo (2020), concerning COVID-19 capacity restrictions on houses of worship, the Court found that even a temporary abridgement of the ability to attend religious services constitutes an “irreparable harm” to free exercise rights, and thus must meet the highest level of judicial scrutiny (Roman Catholic Archdiocese of Brooklyn v. Cuomo 2020, 5). Most recently, the Court made clear that the Free Exercise Clause protects religious expression in Kennedy v. Bremerton School District (2022), where it ruled in favor of a high school football coach’s practice of praying on the field after games: “The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts’” (Kennedy v. Bremerton School District 2022, 12).

While a clearly delineated freedom of expression is relatively recent, these examples show how it has been identified decades and centuries prior, in a wide variety of situations. The rights of freedom of speech and the press, assembly, and religion have all been highlighted as essential to free expression. These rights are therefore crucial not just for themselves, but because of the right to expression that grows out of them, that being the groundwork without which any definition of a free society cannot exist.

References:

Abrams v. United States, 250 U.S. 616 (1919), Justia, https://supreme.justia.com/cases/federal/us/250/616/ (accessed June 9, 2023)

Brandenburg v. Ohio, 395 U.S. 444 (1969), Justia, https://supreme.justia.com/cases/federal/us/395/444/ (accessed June 9, 2023)

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), Justia, https://supreme.justia.com/cases/federal/us/508/520/ (accessed June 9, 2023)

Cohen v. California, 403 U.S. 15 (1971), Justia, https://supreme.justia.com/cases/federal/us/403/15/ (accessed June 9, 2023)

De Jonge v. Oregon, 299 U.S. 353 (1937), Justia, https://supreme.justia.com/cases/federal/us/299/353/ (accessed June 9, 2023)

International Covenant on Civil and Political Rights, 1966, UN Office of the High Commissioner of Human Rights, https://www.ohchr.org/sites/default/files/ccpr.pdf

Kennedy v. Bremerton School District, 597 U.S. ___ (2022), Justia, https://supreme.justia.com/cases/federal/us/597/21-418/#:~:text=Justia%20Summary&text=The%20Constitution%20neither%20mandates%20nor,it%20allows%20comparable%20secular%20speech (accessed June 9, 2023)

Mill, John Stuart. 1859. On Liberty. Kitchener, Ontario, Canada: Batoche Books Limited, https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf

Miller v. California, 413 U.S. 15 (1973), Justia, https://supreme.justia.com/cases/federal/us/413/15/ (accessed June 9, 2023)

Milton, John. 1644. Areopagitica. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 2006, http://files.libertyfund.org/files/103/1224_Bk.pdf

Palko v. Connecticut, 302 U.S. 319 (1937), Justia, https://supreme.justia.com/cases/federal/us/302/319/ (accessed June 9, 2023)

Read, James. 2009. “James Madison.” The First Amendment Encyclopedia, Free Speech Center, Middle Tennessee State University, https://www.mtsu.edu/first-amendment/article/1220/james-madison#:~:text=%22The%20people%20shall%20not%20be,of%20liberty%2C%20shall%20be%20inviolable

Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___ (2020), Justia, https://supreme.justia.com/cases/federal/us/592/20a87/#:~:text=Justia%20Summary&text=In%20challenges%20under%20the%20Free,requirement%20of%20neutrality%20to%20religion (accessed June 9, 2023)

Schenck v. United States, 249 U.S. 47 (1919), Justia, https://supreme.justia.com/cases/federal/us/249/47/ (accessed June 9, 2023)

Sherbert v. Verner, 374 U.S. 398 (1963), Justia, https://supreme.justia.com/cases/federal/us/374/398/ (accessed June 9, 2023)

Stromberg v. California, 283 U.S. 359 (1931), Justia, https://supreme.justia.com/cases/federal/us/283/359/ (accessed June 9, 2023)

Universal Declaration of Human Rights, 1948, United Nations, https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf

Whitney v. California, 274 U.S. 357 (1927), Justia, https://supreme.justia.com/cases/federal/us/274/357/ (accessed June 9, 2023)

Wisconsin v. Yoder, 406 U.S. 205 (1972), Justia, https://supreme.justia.com/cases/federal/us/406/205/ (accessed June 9, 2023)
}}

Freedom of Association/History/Country sources/Pakistan

2023-08-04T14:41:26Z

Bmra2018:

{{Right section
|right=Freedom of Association
|section=History
|question=Country sources
|questionHeading=What is the oldest written source in this country that mentions this right?
|breakout=Pakistan
|pageLevel=Breakout
|contents=The following is from Part II, Chapter I, Section 17 of Pakistan’s current constitution ([[Probable year:: 1973]]) .

“Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”

“Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”

A limited form of freedom of association is provided by the Constitution of the Islamic Republic of Pakistan, enacted shortly after Pakistan became a republic in 1956. Under Article 10, “every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order.”

“Constitution of the Islamic Republic of Pakistan.” World Constitutions Illustrated, July 24, 2023, https://heinonline-org.ccl.idm.oclc.org/HOL/Page?handle=hein.cow/zzpk0008&collection=cow.
}}

Freedom of Religion/History/Country sources/Modern Capitalism

2023-08-04T14:38:20Z

Bmra2018:

{{Right section
|right=Freedom of Religion
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Modern Capitalism
|pageLevel=Breakout
|contents=At first glance, the idea of freedom of religion seems tangential to modern capitalist philosophy. They are of course intuitively compatible, since under a system of free enterprise there is no reason why one shouldn’t have freedom of faith as well. Undoubtedly, capitalism became closely linked to freedom of religion in the political discourse of the Cold War, to draw a contrast with the suppression of religion under communism. Nevertheless, capitalism is fundamentally an economic philosophy, and most arguments for it are in economic terms, with a positive argument for freedom of religion apparently regarded as not essential to a capitalist value system. As Ludwig von Mises wrote, “one does not refute socialism by attacking the socialist stand on religion, marriage, birth control, and art” (von Mises 1990, 16).

That said, even if freedom of religion is not absolutely necessary to the capitalist model, leading capitalist philosophers have interacted with it in unique ways, ultimately showing that freedom of religion can be defended in terms of the free market. Precursors to this connection can be found even before modern capitalism had fully developed, as when Voltaire described how commerce fosters religious tolerance in his famous commentaries on English society: “Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There the Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word” (National Constitution Center 2023).

Milton Friedman, the preeminent modern philosopher of capitalism, would build on this idea by discussing how the underlying principles of capitalism naturally work to promote respect for freedom of religion. In his book Capitalism and Freedom, Friedman specifically highlighted the principles of free association and private enterprise, emphasizing that they have relevance to society in realms other than the economic: “By relying primarily on voluntary cooperation and private enterprise, in both economic and other activities, we can insure that the private sector is a check on the powers of the governmental sector and an effective protection of freedom of speech, of religion, and of thought” (Friedman 2002, 3). Elsewhere in his book, Friedman pointed to the importance of competition: “[T]he preserves of discrimination in any society are the areas that are most monopolistic in character, whereas discrimination against groups of particular color or religion is least in those areas where there is the greatest freedom of competition” (Friedman 2002, 109).

For Friedrich Hayek, the capitalist system was crucial in enabling free exchange of ideas that are in demand by the public, just as it enables the free exchange of goods and services. To Hayek, capitalism (in a broader sociopolitical sense rather than strictly in an economic sense) facilitates freedom, of which freedom of religion is necessarily a part. As he wrote in The Constitution of Liberty, “the man of independent means is an even more important figure in a free society when he is not occupied with using his capital in the pursuit of material gain but uses it in the service of aims which bring no material return” (Hayek 1960, 125). Among these aims are “the propagation of new ideas in politics, morals, and religion” (Hayek 1960, 125). Hayek subsequently emphasizes how the principle of competition necessitates religious pluralism, analogously to John Stuart Mill’s marketplace of ideas: “[T]here should be no monopoly here but as many independent centers as possible able to satisfy such [spiritual] needs… representatives of all divergent views and tastes should be in a position to support with their means and their energy ideals which are not yet shared by the majority” (Hayek 1960, 125). That said, Hayek noted that freedom of religion, like any freedom, cannot be absolute: “Since there is no kind of action that may not interfere with another person's protected sphere, neither speech, nor the press, nor the exercise of religion can be completely free. … Freedom does mean and can mean only that what we may do is not dependent on the approval of any person or authority and is limited only by the same abstract rules that apply equally to all” (Hayek 1960, 155). Even so, Hayek evidently did not regard such limitations as so significant as to curtail freedom of religion; they did not represent a conflict between freedom of religion and the capitalist model.

Other philosophers, however, were not so accepting of the role of religion in the capitalist system. Von Mises did, in some parts of his work, express a view similar to Friedman and Hayek, as when he wrote, “the freedom that the market economy grants to the individual is not merely ‘economic’ as distinguished from some other kind of freedom. It implies the freedom to determine also all those issues which are considered as moral, spiritual, and intellectual” (von Mises 1990, 9). On the other hand, he also apparently considered religion (or at least the institutions of organized religion) inimical to the development of capitalism. As von Mises said, “it would seem that only a negative answer can be made to the question [of] whether it might not be possible to reconcile Christianity with a free social order based on private ownership in the means of production. A living Christianity cannot, it seems, exist side by side with Capitalism. Just as in the case of Eastern religions, Christianity must either overcome Capitalism or go under” (Glahe and Vorhies 1989).

In The Ethics of Liberty, Murray Rothbard denied the very existence of freedom of religion as a separate right, under his conception that all rights are fundamentally property rights. As he wrote, “the concept of ‘rights’ only makes sense as property rights. For not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard” (Rothbard 1998, 113). For Rothbard, every right is a right to ownership (of one’s body, speech, beliefs, etc.); any other account of rights creates inevitable conflicts when one person’s right interferes with the rights of others. He believes that due to such conflicts all rights must be acknowledged as not absolute, and thus (in contrast to Hayek’s view) they become abridged. Using the example of the right to freedom of speech, or “the right of everyone to say whatever he likes,” Rothbard argued that “the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing” (Rothbard 1998, 113). Therefore “there is no such thing as a separate ‘right to free speech’; there is only a man's property right: the right to do as he wills with his own [property] or to make voluntary agreements with other property owners” (Rothbard 1998, 113). The same would thus be true for freedom of religion as a discrete right; presumably, it should likewise be subordinated to the interests of, and subsumed into, the capitalist right to property.

The most obvious real-life application of Rothbard’s stance seems to be in workplace accommodations for religious practice. In the United States, the courts have in fact rejected his view by recognizing a separate right to practice one’s religion as it relates to employment; this goes as far back as the 1963 case Sherbert v. Verner, where the Supreme Court ruled in favor of a woman who had been denied unemployment benefits after being fired due to her Seventh-Day Adventist faith. Under Title VII of the Civil Rights Act of 1964, religion is likewise a protected category when it comes to employment discrimination, in areas like hiring, firing, or advancement. Under the adversarial view described above, however, a business owner’s property is theirs to do with as they see fit, and they cannot be made to change the way they use their property to accommodate anyone’s beliefs; if the requirements of the job are intolerable to an employee’s religion, the business owner has no obligation to keep employing them. While the employee has the right to ownership of their beliefs, that does not extend to the right to practice those beliefs on someone else’s property.

In the thought of the leading philosophers of modern capitalism, one can find divergent views on the relationship that religion, and specifically the right to freedom of religion, has with capitalism. Nonetheless, these philosophers certainly had to contend with issues of religion, and from their writings it can be seen that freedom of religion has more relevance to a discussion of modern capitalist philosophy than may initially be apparent.

References:

Friedman, Milton. Capitalism and Freedom, 3rd ed. Chicago: University of Chicago Press, 2002.

Glahe, Fred, and Frank Vorhies. “Religion, Liberty, and Economic Development: An Empirical Investigation.” Public Choice, 62, no. 3 (1989): 201-215.

Hayek, Friedrich. The Constitution of Liberty. Chicago: University of Chicago Press, 1960.
National Constitution Center. “Letters Concerning the English Nation (1733).” 2023. Accessed July 14, 2023. https://constitutioncenter.org/the-constitution/historic-document-library/detail/voltaireletters-concerning-the-english-nation-1733

Rothbard, Murray. The Ethics of Liberty. New York: New York University Press, 1998.

von Mises, Ludwig. “Human Action.” In Economic Freedom and Interventionism: An Anthology of Articles and Essays, ed. Bettina Bien Greaves, 12-19. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 1990.

von Mises, Ludwig. “The Freeman.” In Economic Freedom and Interventionism: An Anthology of Articles and Essays, ed. Bettina Bien Greaves, 3-11. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 1990.
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Freedom of Religion/History/Country sources/Modern Capitalism

2023-08-04T01:58:14Z

Bmra2018: Created page with "{{Right section |right=Freedom of Religion |section=Philosophical Origins |question=Tradition contributions |questionHeading=What have religious and philosophical traditions contributed to our understanding of this right? |breakout=Modern Capitalism |pageLevel=Breakout |contents=At first glance, the idea of freedom of religion seems tangential to modern capitalist philosophy. They are of course intuitively compatible, since under a system of free enterprise there is no r..."

{{Right section
|right=Freedom of Religion
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Modern Capitalism
|pageLevel=Breakout
|contents=At first glance, the idea of freedom of religion seems tangential to modern capitalist philosophy. They are of course intuitively compatible, since under a system of free enterprise there is no reason why one shouldn’t have freedom of faith as well. Undoubtedly, capitalism became closely linked to freedom of religion in the political discourse of the Cold War, to draw a contrast with the suppression of religion under communism. Nevertheless, capitalism is fundamentally an economic philosophy, and most arguments for it are in economic terms, with a positive argument for freedom of religion apparently regarded as not essential to a capitalist value system. As Ludwig von Mises wrote, “one does not refute socialism by attacking the socialist stand on religion, marriage, birth control, and art” (von Mises 1990, 16).

That said, even if freedom of religion is not absolutely necessary to the capitalist model, leading capitalist philosophers have interacted with it in unique ways, ultimately showing that freedom of religion can be defended in terms of the free market. Precursors to this connection can be found even before modern capitalism had fully developed, as when Voltaire described how commerce fosters religious tolerance in his famous commentaries on English society: “Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There the Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word” (National Constitution Center 2023).

Milton Friedman, the preeminent modern philosopher of capitalism, would build on this idea by discussing how the underlying principles of capitalism naturally work to promote respect for freedom of religion. In his book Capitalism and Freedom, Friedman specifically highlighted the principles of free association and private enterprise, emphasizing that they have relevance to society in realms other than the economic: “By relying primarily on voluntary cooperation and private enterprise, in both economic and other activities, we can insure that the private sector is a check on the powers of the governmental sector and an effective protection of freedom of speech, of religion, and of thought” (Friedman 2002, 3). Elsewhere in his book, Friedman pointed to the importance of competition: “[T]he preserves of discrimination in any society are the areas that are most monopolistic in character, whereas discrimination against groups of particular color or religion is least in those areas where there is the greatest freedom of competition” (Friedman 2002, 109).

For Friedrich Hayek, the capitalist system was crucial in enabling free exchange of ideas that are in demand by the public, just as it enables the free exchange of goods and services. To Hayek, capitalism (in a broader sociopolitical sense rather than strictly in an economic sense) facilitates freedom, of which freedom of religion is necessarily a part. As he wrote in The Constitution of Liberty, “the man of independent means is an even more important figure in a free society when he is not occupied with using his capital in the pursuit of material gain but uses it in the service of aims which bring no material return” (Hayek 1960, 125). Among these aims are “the propagation of new ideas in politics, morals, and religion” (Hayek 1960, 125). Hayek subsequently emphasizes how the principle of competition necessitates religious pluralism, analogously to John Stuart Mill’s marketplace of ideas: “[T]here should be no monopoly here but as many independent centers as possible able to satisfy such [spiritual] needs… representatives of all divergent views and tastes should be in a position to support with their means and their energy ideals which are not yet shared by the majority” (Hayek 1960, 125). That said, Hayek noted that freedom of religion, like any freedom, cannot be absolute: “Since there is no kind of action that may not interfere with another person's protected sphere, neither speech, nor the press, nor the exercise of religion can be completely free. … Freedom does mean and can mean only that what we may do is not dependent on the approval of any person or authority and is limited only by the same abstract rules that apply equally to all” (Hayek 1960, 155). Even so, Hayek evidently did not regard such limitations as so significant as to curtail freedom of religion; they did not represent a conflict between freedom of religion and the capitalist model.

Other philosophers, however, were not so accepting of the role of religion in the capitalist system. Von Mises did, in some parts of his work, express a view similar to Friedman and Hayek, as when he wrote, “the freedom that the market economy grants to the individual is not merely ‘economic’ as distinguished from some other kind of freedom. It implies the freedom to determine also all those issues which are considered as moral, spiritual, and intellectual” (von Mises 1990, 9). On the other hand, he also apparently considered religion (or at least the institutions of organized religion) inimical to the development of capitalism. As von Mises said, “it would seem that only a negative answer can be made to the question [of] whether it might not be possible to reconcile Christianity with a free social order based on private ownership in the means of production. A living Christianity cannot, it seems, exist side by side with Capitalism. Just as in the case of Eastern religions, Christianity must either overcome Capitalism or go under” (Glahe and Vorhies 1989).

In Ethics of Liberty, Murray Rothbard denied the very existence of freedom of religion as a separate right, under his conception that all rights are fundamentally property rights. As he wrote, “the concept of ‘rights’ only makes sense as property rights. For not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard” (Rothbard 1998, 113). For Rothbard, every right is a right to ownership (of one’s body, speech, beliefs, etc.); any other account of rights creates inevitable conflicts when one person’s right interferes with the rights of others. He believes that due to such conflicts all rights must be acknowledged as not absolute, and thus (in contrast to Hayek’s view) they become abridged. Using the example of the right to freedom of speech, or “the right of everyone to say whatever he likes,” Rothbard argued that “the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing” (Rothbard 1998, 113). Therefore “there is no such thing as a separate ‘right to free speech’; there is only a man's property right: the right to do as he wills with his own [property] or to make voluntary agreements with other property owners” (Rothbard 1998, 113). The same would thus be true for freedom of religion as a discrete right; presumably, it should likewise be subordinated to the interests of, and subsumed into, the capitalist right to property.

The most obvious real-life application of Rothbard’s stance seems to be in workplace accommodations for religious practice. In the United States, the courts have in fact rejected his view by recognizing a separate right to practice one’s religion as it relates to employment; this goes as far back as the 1963 case Sherbert v. Verner, where the Supreme Court ruled in favor of a woman who had been denied unemployment benefits after being fired due to her Seventh-Day Adventist faith. Under Title VII of the Civil Rights Act of 1964, religion is likewise a protected category when it comes to employment discrimination, in areas like hiring, firing, or advancement. Under the adversarial view described above, however, a business owner’s property is theirs to do with as they see fit, and they cannot be made to change the way they use their property to accommodate anyone’s beliefs; if the requirements of the job are intolerable to an employee’s religion, the business owner has no obligation to keep employing them. While the employee has the right to ownership of their beliefs, that does not extend to the right to practice those beliefs on someone else’s property.

In the thought of the leading philosophers of modern capitalism, one can find divergent views on the relationship that religion, and specifically the right to freedom of religion, has with capitalism. Nonetheless, these philosophers certainly had to contend with issues of religion, and from their writings it can be seen that freedom of religion has more relevance to a discussion of modern capitalist philosophy than may initially be apparent.

References:

Friedman, Milton. Capitalism and Freedom, 3rd ed. Chicago: University of Chicago Press, 2002.

Glahe, Fred, and Frank Vorhies. “Religion, Liberty, and Economic Development: An Empirical Investigation.” Public Choice, 62, no. 3 (1989): 201-215.

Hayek, Friedrich. The Constitution of Liberty. Chicago: University of Chicago Press, 1960.
National Constitution Center. “Letters Concerning the English Nation (1733).” 2023. Accessed July 14, 2023. https://constitutioncenter.org/the-constitution/historic-document-library/detail/voltaireletters-concerning-the-english-nation-1733

Rothbard, Murray. The Ethics of Liberty. New York: New York University Press, 1998.

von Mises, Ludwig. “Human Action.” In Economic Freedom and Interventionism: An Anthology of Articles and Essays, ed. Bettina Bien Greaves, 12-19. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 1990.

von Mises, Ludwig. “The Freeman.” In Economic Freedom and Interventionism: An Anthology of Articles and Essays, ed. Bettina Bien Greaves, 3-11. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 1990.
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Freedom of Religion/History/Country sources/Weberian Thought

2023-08-04T01:34:53Z

Bmra2018: Created page with "{{Right section |right=Freedom of Expression |section=Philosophical Origins |question=Tradition contributions |questionHeading=What have religious and philosophical traditions contributed to our understanding of this right? |breakout=Weberian Thought |pageLevel=Breakout |contents=Regarded as one of the founders of the field of sociology, the influence of Max Weber (1864-1920) on contemporary thinking about politics and society has been immense. Throughout an extensive bo..."

{{Right section
|right=Freedom of Expression
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Weberian Thought
|pageLevel=Breakout
|contents=Regarded as one of the founders of the field of sociology, the influence of Max Weber (1864-1920) on contemporary thinking about politics and society has been immense. Throughout an extensive body of work, perhaps the main theme of Weber’s thought is the rapid political and economic evolution that European society was undergoing in his lifetime, and the question of how freedom can still exist in this increasingly rationalized and bureaucratized new order.

When describing his fears for the survival of freedom in the modern world, Weber refers to “individually differentiated conduct” and “individualistic freedom” being curtailed by the process of rationalization (Levine 1981, 16). Since expressing oneself and one’s sentiments is what individualized (i.e., unique to and illustrative of one’s personal qualities) conduct fundamentally consists of, Weber’s concern for individual autonomy can be translated as a concern for freedom of expression. However, one significant difference between Weber and other philosophers of freedom, from John Locke to John Rawls, is that Weber does not think of freedom in terms of rights that one is entitled to. For Weber, freedom of expression is akin to the agency to express ideas and bring them to fruition: it is less a right everyone has simply by virtue of being born, and more a quest to fulfill.

Not only that, but Weber’s ultimate focus is on the state rather than the individual: while his goal is the realization of individual expression, he regards this goal as something to be achieved through developments on a national or societal level, instead of on a personal one. Politics, for him, is “a uniquely human activity, one with the potential both to create and to manifest the responsibility and dignity of individuals in an increasingly secularized world” (Warren 1988, 31).

In his 1919 address “Politics as a Vocation,” Weber begins his exploration of how politics functions in the modern day with his famous formulation that a state is defined by its monopoly on the legitimate use of force: “the modern state is a compulsory association which organizes domination” (Weber 1919, 4). This view certainly lacks the idealism of theories grounded in the idea that the state is under a social contract with its people to uphold their rights. Nevertheless, what is often missed is that Weber’s theory requires not just for the state to be more powerful than any competitors who might also seek to exert force, but for it to exercise power in a way that is (or at least widely recognized as) normatively legitimate.

This discussion of state legitimacy would, it should be noted, have felt particularly prescient to audiences in Weber’s native Germany. Weber delivered his address only a year after the end of World War I, when the monarchy of Kaiser Wilhelm II had been broadly discredited by the devastating loss of the war, and the German people had found themselves living in a vaguely democratic republic that many on both the right and left felt had no grounds to claim their allegiance. In “Politics as a Vocation,” Weber presents three possible sources of legitimate authority: one based on tradition, one on a system of rules or laws, and one on a leader’s “extraordinary and personal gift of grace (charisma)” (Weber 1919, 2). It is this last one that is of most interest concerning how freedom of expression fits into Weber’s views. According to Weber, charismatic legitimacy consists of “absolutely personal devotion and personal confidence in revelation, heroism, or other qualities of individual leadership.” Historically, it has been displayed by “the elected war lord, the plebiscitarian ruler, the great demagogue, or the political party leader” (Weber 1919, 2).

Charismatic legitimacy is, therefore, most relevant to Weber’s vision of the fulfillment of freedom of expression through the state – one where both leaders and those under them interact with politics as a vocation, or (per his term) a calling, a word with distinctly religious connotations. Weber further defines a calling by distinguishing between ‘occasional’ and vocational political engagement: “we are all ‘occasional’ politicians when we cast our ballot or consummate a similar expression of intention, such as applauding or protesting in a ‘political’ meeting, or delivering a ‘political’ speech, etc. The whole relation of many people to politics is restricted to this” (Weber 1919, 5). Political expression requires politicians or other politically engaged people to approach politics as a vocation – as a spiritual mission that one lives to fulfill.

However, to Weber, charismatic leadership alone is insufficient for the popular will to be expressed. Although Weber is cognizant of the problems of bureaucracy, he recognizes that a charismatic leader ultimately needs an effective state apparatus to carry out their promises. To him, “the bureaucratic state order is especially important; in its most rational development, it is precisely characteristic of the modern state” (Weber 1919, 4). The seeming contradiction can potentially be resolved if one considers that throughout his works Weber invokes two distinct types of freedom, each of which interact differently with the inescapable process of the rationalization and bureaucratization of society. One is ‘situational’ freedom, referring to external constraints on one’s movements or actions; the other is freedom in the much more expansive sense of autonomy, or “the condition in which individual actors choose their own ends of action” (Levine 1981, 16). While it is easy to imagine how the rise of factory jobs and big government would restrict situational freedom, Weber believes that the modern state’s effect on personal autonomy is actually positive. This conception of autonomy can be more broadly defined as the ability to be guided by one’s own ideas; Weber calls it “a series of ultimate decisions through which the soul…chooses its own fate” (Levine 1981, 21). It can thus be said that to have autonomy, by Weber’s definition, is to have freedom of expression.

In “Politics as a Vocation,” Weber identifies a state bureaucracy as ultimately critical for the state to enable citizens’ political aspirations to come to fruition – for citizens to have autonomy, in the sense of choosing their own fates. Weber expounds on this idea in other writings on bureaucracy, as in his statements that bureaucratic organization “has usually come into power on the basis of a leveling of economic and social differences,” and that it “inevitably accompanies mass democracy” (Gerth and Mills 1946, 224). This is because mass democracy necessitates “the characteristic principle of bureaucracy: the abstract regularity of the execution of authority” (Gerth and Mills 1946, 224). Weber further elaborates on this with phrases like “‘equality before the law’ in the personal and functional sense,” the “horror of ‘privilege,’” and “the principled rejection of doing business ‘from case to case’” (Gerth and Mills 1946, 224). In today’s terms, this concept might be summarized as the rule of law: having institutions in place to ensure the state effectively and consistently carries out its functions. Weber certainly seems right that a bureaucracy in this sense would be a precondition for popular expression. As an example, in “Politics as a Vocation,” he approvingly cites the 1883 Civil Service Reform Act as creating a professional bureaucracy in the United States, replacing the “spoils” system where successive administrations distributed offices based on political allegiance (Weber 1919, 7).

Nonetheless, Weber’s account of freedom of expression, where the effective operation of the state serving as the avenue for expression of public sentiments, still seems lacking in other ways. Under Weber’s conception of the state, the people’s voice is only expressed indirectly: “the demos itself, in the sense of an inarticulate mass, never 'governs' larger associations; rather, it is governed, and its existence only changes the way in which the executive leaders are selected and the measure of influence which the demos, or better, which social circles from its midst are able to exert upon the content and the direction of administrative activities by supplementing what is called 'public opinion'” (Gerth and Mills 1946, 225).

Then again, this may not have been as much of a concern for Weber. For Weber, political expression entails a progression towards political maturity; the realization of the people’s aspirations is more of a responsibility on their part than a right. Indeed, throughout his body of work, Weber displays a deep pessimism about the political capacities of the German people. According to him (as he wrote in the 1890s), if there is any hope, it lies in the economically ascendant but politically unassertive bourgeoisie: the decaying aristocracy can no longer be trusted with power, while the working classes are led by those who “have no organic connection with the class they claim to represent” and whose “revolutionary posture in fact acts against the further advancement of the working class towards political responsibility” (Giddens 1972, 17).

Giddens goes on to explain Weber’s viewpoint thus: “Weber saw as the principal question affecting the future of Germany [as] that of whether the economically prosperous bourgeoisie could develop a political consciousness adequate enough to undertake the leadership of the nation. … there could be no question of refounding German liberalism upon a 'natural law' theory of democracy. He rejected, moreover, the classical conception of 'direct' democracy, in which the mass of the population participate in decision-making.” Ultimately, “in the modern state, leadership must be the prerogative of a minority: this is an inescapable characteristic of modern times. Any idea 'that some form of democracy’ can destroy the ‘domination of men over other men’ is ‘utopian’” (Giddens 1972, 18).

Perhaps an even bigger problem with Weber’s freedom of expression is that he necessarily views the expression of the popular (which is to say, majority) will as entailing the expression of the individual will. In his address, he never considers situations where they might not, in fact, be one and the same – where an individual might dissent from the majority. Weber’s inattention to the protection of minority views is a consequence of his lack of discussion of individual rights, or indeed of any other limits on government power (like independent legislative and judicial branches, or even regular competitive elections). He may have died before he could see them, but the 20th century would provide numerous examples of how the unfettered state is anything but conducive to freedom, by any definition of the term. While the aim of “Politics as a Vocation” may just be to explain how the state functions and acquires legitimacy, its failure to consider any substantial limits on what the bureaucratic state can do is ultimately a second reason why it is lacking as an account of freedom of expression.

In his book, Mommsen describes Weber’s view thus: “Max Weber considered the natural-law justification of democracy and the liberal constitutional state to be outmoded and an insufficient basis for a modern theory of government. The ‘rights of mankind’ were… ‘extremely rationalized fanaticisms.’” Weber acknowledged that the principle of human rights had done much good, but felt its value was limited in the modern reality: “[Weber] believed that he believed that the axioms of natural law were no longer providing clear directions for a just social order under the conditions of higher capitalism. He also felt that ‘the old individualist principles of inalienable human rights’ had lost much of their power of persuasion under the conditions of modern industrial society. He did not hesitate, on occasion, to set them aside” (Mommsen 1984, 392-393).

Another review describes these shortcomings in Weber’s vision of freedom of expression as less flaws in Weber’s reasoning, and more “symptoms of real challenges for democratic theory” (Warren 1988, 31). Weber may very well have been correct in his preoccupation with the inadequacies of democracy in modern society. Nonetheless, as Warren puts it, “these conflicts would have been less had Weber elaborated his liberal commitments in substantially democratic directions rather than the elitist direction he in fact chose” (Warren 1988, 32). As the world learned from bitter experience, the problems of democracy can only be addressed by expanding democratic participation and rights, to as wide a range of people as possible, and not by restricting them.

There is much in Weber’s political thought that is insightful, and even prescient. In his warnings of the dangers that a hyper-rationalized society posed to freedom of expression, Weber stands out from the Enlightenment thinkers who came before him, for whom rationalization must invariably lead to freedom by liberating humanity from the tyranny of dogma and superstition (Levine 1981, 5). That being said, even if it may have seemed reasonable at the time and much of the criticisms of it come with the benefit of hindsight, his account of freedom of expression is incomplete, in that it only envisions an indirect political expression for the vast majority of citizens, and neglects to recognize the need to protect dissenting voices from the state through robust limits on state power.

References:

Gerth, Hans H., and C. Wright Mills. From Max Weber: Essays in Sociology. New York: Oxford University Press, 1946.

Giddens, Anthony. Politics and Sociology in the Thought of Max Weber. London: Macmillan Press, Ltd., 1972.

Levine, Donald. “Rationality and Freedom: Weber and Beyond.” Sociological Inquiry, 51, no. 1 (1981): 5-25, https://claremont.illiad.oclc.org/illiad/pdf/668358.pdf

Mommsen, Wolfgang. Max Weber and German Politics, 1890-1920. Translated by Michael Steinberg. Chicago: University of Chicago Press, 1984.

Warren, Mark. “Max Weber’s Liberalism for a Nietzschean World.” The American Political Science Review, 82, no. 1 (1988): 31-50, https://www-jstor-org.ccl.idm.oclc.org/stable/pdf/1958057.pdf?refreqid=excelsior%3Ab0b313bfe50f0c00080b3af5edb29a18&ab_segments=&origin=&initiator=&acceptTC=1

Weber, Max. 1919. “Politics as a Vocation.” In From Max Weber: Essays in Sociology, edited and translated by Hans H. Gerth and C. Wright Mills, 77-128. New York: Oxford University Press, 1946, http://fs2.american.edu/dfagel/www/class%20readings/weber/politicsasavocation.pdf
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Freedom of Religion/History/Country sources/Benthamite Utilitarianism

2023-08-04T01:22:01Z

Bmra2018: Created page with "{{Right section |right=Freedom of the Press |section=Philosophical Origins |question=Tradition contributions |questionHeading=What have religious and philosophical traditions contributed to our understanding of this right? |breakout=Benthamite Utilitarianism |pageLevel=Breakout |contents=Jeremy Bentham (1748–1832) was an English philosopher whose work would prove foundational to the development of modern liberalism, as both a moral and a political vision. Bentham’s u..."

{{Right section
|right=Freedom of the Press
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Benthamite Utilitarianism
|pageLevel=Breakout
|contents=Jeremy Bentham (1748–1832) was an English philosopher whose work would prove foundational to the development of modern liberalism, as both a moral and a political vision. Bentham’s unique brand of liberalism is most strongly associated with his guiding principle of utilitarianism: that what is best is what brings the most utility to the greatest number of people. Despite what might today be recognized as problematic implications of an absolute adherence to this principle, Bentham’s utilitarianism made him a strong advocate of social and political freedoms, under the reasoning that these freedoms are a net good to society.

Bentham defines his utilitarian philosophy in his 1781 tract An Introduction to the Principles of Morals and Legislation. By his central concept of utility, he means “that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness (all this in the present case comes to the same thing), or (what comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered” (Bentham 1781, 14-15). Notably, he insists that utility can only accrue to the individual: “The interest of the community is one of the most general expressions that can occur in the phraseology of morals: no wonder that the meaning of it is often lost. … The community is a fictitious body, composed of the individual persons who are considered as constituting, as it were, its members. The interest of the community then is, what is it? —the sum of the interests of the several members who compose it” (Bentham 1781, 15). Therefore, a good government is one that acts in the ultimate interests of its individual constituents, and not for some vague notion of the good of the community or the state.

Presaging his protege John Stuart Mill, Bentham seeks to defend press freedom through the lens of his utilitarian ideal. Bentham identifies an unfettered press as the essential guarantor against what he terms misrule, by ensuring protection against government oppression and the accountability of leaders to the people they represent. This is perhaps best seen in his commentary on the suppression of liberal movements in Spain, and by extension in his native England as well. Referring to a report of a Madrid newspaper editor being prosecuted for his work, Bentham declares that “whatsoever evil can ever result from this liberty [of the press], is everywhere, and at all times, greatly outweighed by the good” (Bentham 1820). This is because the liberty of the press “operates as a check upon the conduct of the ruling few; and in that character constitutes a controlling power, indispensably necessary to the maintenance of good government” (Bentham 1820). To Bentham, the benefits of good government are “plainly infinite” (Bentham 1820).

Bentham does not further elaborate on these benefits in his letter on the situation in Spain, but elsewhere in his work he consistently identifies good governance with participatory democracy, with the ability of the people to impact their government, and consequently with freedom in the broadest sense. For Bentham, “in the late stages of his long career nothing was more important to ‘good politics’ than the influence of public opinion on those with political power” (Cutler 1999, 322). He even wrote of an (allegorical) Public Opinion Tribunal that would issue “judgments” of politicians, to ensure that politics takes the people’s unfiltered and all-inclusive sentiments into account: “No one can know her interests better than herself. Thus, if a utilitarian public policy is to emerge from an aggregation of those interests, the constitution should provide the institutions that permit all persons to communicate their interests to government equally” (Cutler 1999, 324). Unlike many of his contemporaries, Bentham places such high value on government by and for the people, that he insists that the government has a duty to be responsive to the people even when public opinion is misguided. He was not naïve; to him, “[self-determination] does not require certainty in [the people’s] judgments of prospective utility … The institutions of government, therefore, ought to allow the public to react to what their government is doing, constantly steering closer and closer to providing for their interests” (Cutler 1999, 324).

When it comes to the purported harms of a free press, Bentham points out that prosecutions for criticizing the government are traditionally justified as a response to an insult to the honor of the state or its functionaries, and that this is regarded as a threat to the integrity of the state (Bentham 1820). Indeed, rulers have historically tended to punish defamation of the government or its representatives more harshly than defamation of private individuals, and to treat aspersions cast on the government as a whole or on a higher ranked official as more serious than those cast on a lower ranked official. Bentham considers this nonsensical: he argues that the harms to a discrete number of high-profile individuals who may find themselves maligned are far eclipsed by the much greater benefits that a free press brings to a much wider range of people. He even notes that public figures who find themselves unfairly targeted by the press have a built-in remedy commensurate with the rank of their position, since their status affords them distinct advantages in rebutting any allegations, which a private person does not have (Bentham 1820).

Moreover, far from handicapping the function of the state by impugning its reputation, a free press actually does the opposite. For a real world illustration of his reasoning, Bentham points to the United States, where the freedom of journalists to speak against the government is not only constitutionally protected but considered inalienable from public life, but which he nevertheless considers better governed than even his own country; he even calls the young nation the only country that truly has good governance. Thus, Bentham elucidates a utilitarian account of freedom of the press: the cumulative benefit to individuals is far greater than the cumulative harm. Put another way, in an ideal government where one can feel assured that the laws are just, a good citizen’s aim should be “to obey punctually; to censure freely” (Schofield 2019, 43).

Bentham does recognize narrow circumstances where the press can be censured for defamation, but he holds that this punishment should be applied in the reverse of how it has typically been: defamation of a private person should be treated as more severe than defamation of a state official. In fact, Bentham lays out a standard of proof for defamation of a public figure that is remarkably similar to the actual malice standard laid out by the US Supreme Court more than a century later: namely, the statement in question must be not just untrue but “the result of willful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness” (Schofield 2019, 45). Presumably, he would likewise support the modern jurisprudence that mere negligence of the falsity of a statement is sufficient proof in the case of a non-public figure.

Benthamite utilitarianism, it must be said, does not necessarily anticipate all the problems with today’s mass media and its role in guiding the reins of government. For one thing, Bentham does not consider that the press does not just report public opinion but shapes it (often quite intentionally); he also does not ask how public policy should incorporate the views of experts when they conflict with the public mood, or how it should protect the right of minority views to also be heard and compete for influence. Nonetheless, Bentham’s work offers a straightforward and persuasive account of the value of a press free from state interference, giving a highly compelling defense of this fundamental human right at a time of conservative retrenchment and reaction throughout Europe.

References:

Bentham, Jeremy. 1781. An Introduction to the Principles of Morals and Legislation. Kitchener, Ontario, Canada: Batoche Books Limited, 2000.

Bentham, Jeremy. October 7, 1820. “To the Spanish People: Letter I.” Classical Utilitarianism Website, University of Texas, September 24, 2003, https://www.laits.utexas.edu/poltheory/bentham/bsp/bsp.l01.html

Cutler, Fred. “Jeremy Bentham and the Public Opinion Tribunal.” Public Opinion Quarterly, 63, no. 3 (1999): 321-346, https://academic.oup.com/poq/article-abstract/63/3/321/1902496?redirectedFrom=fulltext#no-access-message

Schofield, Philip. “Jeremy Bentham on Freedom of the Press, Public Opinion, and Good Government.” Scandinavica, 58, no. 2 (2019): 39-57, https://discovery.ucl.ac.uk/id/eprint/10105424/1/13223-jeremy-bentham-on-freedom-of-the-press-public-opinion-and-good-government.pdf
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Freedom of Religion/History/Country sources/Medieval Judaism

2023-08-04T00:49:20Z

Bmra2018:

{{Right section
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|section=Philosophical Origins
|question=Tradition contributions
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|breakout=Medieval Judaism
|pageLevel=Breakout
|contents=The concept of freedom of religion in Jewish philosophy initially seems to be a modern innovation, especially since the term does not appear in Jewish holy texts. At the same time, however, there is some sense of a freedom of religion in Jewish thought, in a way that could be said to prefigure the secular conception of that idea.

Fundamentally, Judaism teaches that all people are made in God’s image, and its holy texts emphasize the value of tolerance in multiple places. Perhaps most well-known is Leviticus 19:18, which says “love your neighbor as yourself.” Even more prescriptive is Leviticus 19:34, which commands to the people of Israel that “the stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.” These lines formed the basis for one of the most famous anecdotes in Judaism, where Rabbi Hillel (active in the first century BCE) summed up all of Jewish teaching as “that which is hateful to you, do not do unto your fellow. That is the entire Torah, the rest is commentary” (Shurpin n.d.).

Hillel’s dictum is often referred to as the Golden Rule, which is found in one form or another in every other world faith, but his precise wording is unique. The Golden Rule is typically stated as some variation of “treat others the way you want to be treated,” but Hillel inverts this by giving a negative formulation – i.e., how not to treat others. This phrasing is very revealing when it comes to a Jewish freedom of religion: from this, it is easy to see that one should not mistreat others because of their religious beliefs, because one would not want be treated that way by others.

As with any faith that aims to guide people’s spiritual lives, Judaism necessarily tells its adherents what they should believe, so total freedom of religion (the freedom to believe whatever one wants) is not possible within the faith. Judaism holds that anyone born to a Jewish mother is Jewish, so one doesn’t stop being a Jew if, for example, one declares that one doesn’t believe in God, but such a belief would traditionally be considered incompatible with being a “good” Jew. Possibly the single most foundational Talmudic scholar of the Middle Ages, Moses Maimonides (died 1204), outlined thirteen fundamental principles of the Jewish faith, and all concern different aspects of believing in God and other beliefs; they are customarily recited in the format “I believe…” (Chabad n.d.).

Nevertheless, a fundamental idea of freedom of thought can be seen in traditional Jewish philosophy. As far back as the medieval period, Jewish scholars sampled from as wide a range of schools of thought as possible, including classical, Christian, and Muslim thought, in their pursuit of the ultimate truth. Since the greatest intellectual centers of the medieval Jewish world were Muslim-ruled Spain and the Middle East, Jewish philosophers were especially heavily influenced by their Islamic contemporaries, and by extension, by classical Greek texts that they encountered via Arabic translations. One particularly revealing example is Saadya Gaon, who was active in the Middle East over a century before Maimonides’ birth: “Saadya was not committed to any particular philosophical school. Existing philosophical schools were the heritage of a non-Jewish culture, the rich influence of which Saadya did not try to reject. But being a Jew [in contrast to his Muslim contemporaries], he felt free to collect material gleaned from various sources” (Stroumsa 2003, 80). Evaluations of Saadya Gaon’s body of work suggest an overarching commitment to reason over dogma; to the conviction that “the praiseworthy wise person is he who makes reality his guiding principle and bases his belief thereon,” and that “the reprehensible fool … is he who sets up his personal conviction as his guiding principle, assuming that reality is patterned after his beliefs” (Stroumsa 2003, 76). To him, this free inquiry was unquestionably compatible with Judaism. Another example of this intellectual diffusion is the Jewish Neoplatonists, foremost among them Isaac Israeli (Saadya Gaon’s contemporary) and Solomon ibn Gabirol, who both drew from and refuted the pagan worldview that the original Neoplatonist school promoted (Pessin 2003, 91-106). Maimonides himself may have been more discriminating about drawing from non-Jewish traditions, but the profound influence of Aristotelian philosophy on his thought is nevertheless widely acknowledged: even in the many places where Maimonides disagreed with Aristotle, his “philosophical starting point is Aristotle, and it is from Aristotle that he develops his own philosophical positions” (Frank 2003, 145).

Moreover, a major difference between Judaism and other Abrahamic religions is that Judaism is largely unconcerned with what non-adherents believe, and thus affords a strong degree of freedom of religion to those outside the faith. In contrast to both Christianity and Islam, where it has traditionally been considered incumbent upon those faiths’ adherents to work for the conversion of people of other faiths, Judaism is decidedly not a proselytizing religion, so much so that many modern Jews regard trying to convert others to the faith as inappropriate and disrespectful. Conversion to Judaism is deliberately a difficult and drawn-out process, meant to ensure that those who seek to convert are doing so out of genuine belief.

According to Rabbi Reuven Firestone of Hebrew Union College, the Jewish aversion to proselytization came about by necessity, to protect their communities throughout the long history of Jews living as a persecuted minority in Christian and Muslim states. Starting under the Roman Empire and continuing throughout the medieval period, entire communities could be severely punished for proselytizing to the majority faith: “The rule of survival in each context required that Jews not proselytize, upon pain of death. … Such a length of time [as a minority faith] can deeply acculturate an aversion to engaging in an act that could easily bring death and destruction to the community. So proselytism, while not forbidden anywhere in Judaism, came to feel foreign and strange” (Firestone 2019).

Although only Jews are obligated to follow Jewish law, Judaism does have a separate injunction for non-Jews, known as the Noachide Laws (Korn n.d.). Believed to have been given by God to Noah after the Great Flood, the Talmud regards these as universal laws that are binding on all of Noah’s descendants (all of humanity), thus making them the only instance where Judaism claims to prescribe the behavior of non-adherents.
Five of the seven Noachide Laws concern actions and not beliefs – the command to establish courts to uphold the law, and the prohibitions on murder, theft, sexual immorality, and eating the flesh of a living animal. The remaining two, which prohibit blasphemy and idolatry, are potentially problematic when it comes to respect for foreign religious beliefs: while traditional Jewish philosophy would not have regarded blasphemy and idol worship to be genuine religious expressions, the practical definitions of those terms can easily expand to encompass the sincerely held beliefs of other people and their cultures.

However, it is still very notable that non-Jews who abide by the Noachide Laws are thought to have a share in the World to Come, the closest thing Judaism has to heaven, despite not believing in the Jewish God or following any of the Jewish commandments (Korn n.d.). Therefore, at least implicitly, Judaism recognizes that other faiths also can guide a person to live a good and virtuous life – that action is ultimately more determinative of personal morality than belief – and this idea can also be found in medieval thought. Particularly interesting is the apologia commonly known as The Kuzari, by Spanish Jewish polymath Judah Halevi (died 1141), which is framed as an account of a Khazar king convening a dialogue between practitioners of different faiths. (The Khazars were an Eastern European empire whose ruling class converted from paganism to Judaism for uncertain reasons; Halevi’s account, written centuries after their conversion, purports to tell how it happened).

In Halevi’s narrative, the king describes his spiritual crisis following a dream where an angel told him that “his intentions were pleasing to God, but his actions were not” (Kogan 2003, 112). Subsequently, the king tries to “make a more zealous effort to observe the rites of his pagan religion than before,” but the angel keeps returning with the same message (Kogan 2003, 112). Eventually, the king realizes “that God was commanding him to seek out those actions that would be pleasing,” and so he gathers representatives of all the different religions for counsel (Kogan 2003, 112). It is the Jewish response (no doubt a stand-in for Halevi’s view) that he ultimately finds the most convincing, thus spurring his conversion. In his advice to the king, the Jewish philosopher seems almost unconcerned with what belief system the king follows, but only that he act with reason and justice: “the philosopher urges the king, in general terms, to purify his soul of doubts and pursue knowledge of the true realities, while keeping to the path of justice… if he still wishes, he may either create a religion for himself or follow one of the intellectual nomoi [Greek for laws or conventions] of the philosophers” (Kogan 2003, 113). Overall, Halevi defends tolerance of other beliefs as a Jewish value. With the Reconquista and the Crusades as the backdrop of his life, Halevi seems to have felt the rising anti-Jewish persecution of his time deeply – the full title of The Kuzari is Book of Refutation and Proof on Behalf of the Despised Religion.

Although Jewish thought has not had to contend with a notion of freedom of religion, as such, until relatively recently, traces of the idea can be found going back to the medieval period. While ultimately it is hard to argue that unbounded freedom of religion can exist in Judaism, especially when it comes to freedom of religion within Judaism (as is the case for any belief system), Judaism does stand out in its tolerant attitude toward the beliefs of other religions. More broadly, a certain freedom of thought, including a freedom to hold nonconforming religious opinions, can be found in some of the most renowned Jewish scholars’ commitment to rational and diverse inquiry, and overarching emphasis on action over belief.

References:

Chabad. “The Thirteen Principles of Jewish Faith.” n.d. Accessed July 5, 2023. https://www.chabad.org/library/article_cdo/aid/332555/jewish/Maimonides-13-Principles-of-Faith.htm

Firestone, Reuven. “Why Jews Don’t Proselytize.” Renovatio. June 12, 2019. Accessed July 5, 2023. https://renovatio.zaytuna.edu/article/why-jews-dont-proselytize

Frank, Daniel H. “Maimonides and Medieval Jewish Aristotelianism.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 136-156. New York: Cambridge University Press, 2003.

Kogan, Barry S. “Judah Halevi and his use of Philosophy in The Kuzari.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 111-135. New York: Cambridge University Press, 2003.

Korn, Eugene. “Noachide Covenant: Theology and Jewish Law.” Boston College Center for Christian-Jewish Learning. n.d. Accessed July 5, 2023. https://www.bc.edu/content/dam/files/research_sites/cjl/texts/cjrelations/resources/sourcebook/Noahide_covenant.htm

Pessin, Sarah. “Jewish Neoplatonism: Being above Being and Divine Emanation in Solomon ibn Gabirol and Isaac Israeli.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 91-110. New York: Cambridge University Press, 2003.

Shurpin, Yehuda. “Is Hillel’s Teaching the same as the Golden Rule?” n.d. Accessed July 5, 2023.
https://www.chabad.org/library/article_cdo/aid/5410546/jewish/Is-Hillels-Teaching-the-Same-as-the-Golden-Rule.htm

Stroumsa, Sarah. “Saadya and Jewish Kalam.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 71-90. New York: Cambridge University Press, 2003.
}}

Freedom of Religion/History/Country sources/Medieval Judaism

2023-08-04T00:41:56Z

Bmra2018:

{{Right section
|right=Freedom of Religion
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Medieval Judaism
|pageLevel=Breakout
|contents=The concept of freedom of religion in Jewish philosophy initially seems to be a modern innovation, especially since the term does not appear in Jewish holy texts. At the same time, however, there is some sense of a freedom of religion in Jewish thought, in a way that could be said to prefigure the secular conception of that idea.

Fundamentally, Judaism teaches that all people are made in God’s image, and its holy texts emphasize the value of tolerance in multiple places. Perhaps most well-known is Leviticus 19:18, which says “love your neighbor as yourself.” Even more prescriptive is Leviticus 19:34, which commands to the people of Israel that “the stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.” These lines formed the basis for one of the most famous anecdotes in Judaism, where Rabbi Hillel (active in the first century BCE) summed up all of Jewish teaching as “that which is hateful to you, do not do unto your fellow. That is the entire Torah, the rest is commentary” (Shurpin n.d.).

Hillel’s dictum is often referred to as the Golden Rule, which is found in one form or another in every other world faith, but his precise wording is unique. The Golden Rule is typically stated as some variation of “treat others the way you want to be treated,” but Hillel inverts this by giving a negative formulation – i.e., how not to treat others. This phrasing is very revealing when it comes to a Jewish freedom of religion: from this, it is easy to see that one should not mistreat others because of their religious beliefs, because one would not want be treated that way by others.

As with any faith that aims to guide people’s spiritual lives, Judaism necessarily tells its adherents what they should believe, so total freedom of religion (the freedom to believe whatever one wants) is not possible within the faith. Judaism holds that anyone born to a Jewish mother is Jewish, so one doesn’t stop being a Jew if, for example, one declares that one doesn’t believe in God, but such a belief would traditionally be considered incompatible with being a “good” Jew. Possibly the single most foundational Talmudic scholar of the Middle Ages, Moses Maimonides (died 1204), outlined thirteen fundamental principles of the Jewish faith, and all concern different aspects of believing in God and other beliefs; they are customarily recited in the format “I believe…” (Chabad n.d.).

Nevertheless, a fundamental idea of freedom of thought can be seen in traditional Jewish philosophy. As far back as the medieval period, Jewish scholars sampled from as wide a range of schools of thought as possible, including classical, Christian, and Muslim thought, in their pursuit of the ultimate truth. Since the greatest intellectual centers of the medieval Jewish world were Muslim-ruled Spain and the Middle East, Jewish philosophers were especially heavily influenced by their Islamic contemporaries, and by extension, by classical Greek texts that they encountered via Arabic translations. One particularly revealing example is Saadya Gaon, who was active in the Middle East over a century before Maimonides’ birth: “Saadya was not committed to any particular philosophical school. Existing philosophical schools were the heritage of a non-Jewish culture, the rich influence of which Saadya did not try to reject. But being a Jew [in contrast to his Muslim contemporaries], he felt free to collect material gleaned from various sources” (Stroumsa 2003, 80). Evaluations of Saadya Gaon’s body of work suggest an overarching commitment to reason over dogma; to the conviction that “the praiseworthy wise person is he who makes reality his guiding principle and bases his belief thereon,” and that “the reprehensible fool … is he who sets up his personal conviction as his guiding principle, assuming that reality is patterned after his beliefs” (Stroumsa 2003, 76). To him, this free inquiry was unquestionably compatible with Judaism. Another example of this intellectual diffusion is the Jewish Neoplatonists, foremost among them Isaac Israeli (Saadya Gaon’s contemporary) and Solomon ibn Gabirol, who both drew from and refuted the pagan worldview that the original Neoplatonist school promoted (Pessin 2003, 91-106). Maimonides himself may have been more discriminating about drawing from non-Jewish traditions, but the profound influence of Aristotelian philosophy on his thought is nevertheless widely acknowledged: even in the many places where Maimonides disagreed with Aristotle, his “philosophical starting point is Aristotle, and it is from Aristotle that he develops his own philosophical positions” (Frank 2003, 145).

Moreover, a major difference between Judaism and other Abrahamic religions is that Judaism is largely unconcerned with what non-adherents believe, and thus affords a strong degree of freedom of religion to those outside the faith. In contrast to both Christianity and Islam, where it has traditionally been considered incumbent upon those faiths’ adherents to work for the conversion of people of other faiths, Judaism is decidedly not a proselytizing religion, so much so that many modern Jews regard trying to convert others to the faith as inappropriate and disrespectful. Conversion to Judaism is deliberately a difficult and drawn-out process, meant to ensure that those who seek to convert are doing so out of genuine belief.

According to Rabbi Reuven Firestone of Hebrew Union College, the Jewish aversion to proselytization came about by necessity, to protect their communities throughout the long history of Jews living as a persecuted minority in Christian and Muslim states. Starting under the Roman Empire and continuing throughout the medieval period, entire communities could be severely punished for proselytizing to the majority faith: “The rule of survival in each context required that Jews not proselytize, upon pain of death. … Such a length of time [as a minority faith] can deeply acculturate an aversion to engaging in an act that could easily bring death and destruction to the community. So proselytism, while not forbidden anywhere in Judaism, came to feel foreign and strange” (Firestone 2019).

Although only Jews are obligated to follow Jewish law, Judaism does have a separate injunction for non-Jews, known as the Noachide Laws (Korn n.d.). Believed to have been given by God to Noah after the Great Flood, the Talmud regards these as universal laws that are binding on all of Noah’s descendants (all of humanity), thus making them the only instance where Judaism claims to prescribe the behavior of non-adherents.
Five of the seven Noachide Laws concern actions and not beliefs – the command to establish courts to uphold the law, and the prohibitions on murder, theft, sexual immorality, and eating the flesh of a living animal. The remaining two, which prohibit blasphemy and idolatry, are potentially problematic when it comes to respect for foreign religious beliefs: while traditional Jewish philosophy would not have regarded blasphemy and idol worship to be genuine religious expressions, the practical definitions of those terms can easily expand to encompass the sincerely held beliefs of other people and their cultures.

However, it is still very notable that non-Jews who abide by the Noachide Laws are thought to have a share in the World to Come, the closest thing Judaism has to heaven, despite not believing in the Jewish God or following any of the Jewish commandments (Korn n.d.). Therefore, at least implicitly, Judaism recognizes that other faiths also can guide a person to live a good and virtuous life – that action is ultimately more determinative of personal morality than belief – and this idea can also be found in medieval thought. Particularly interesting is the apologia commonly known as The Kuzari, by Spanish Jewish polymath Judah Halevi (died 1141), which is framed as an account of a Khazar king convening a dialogue between practitioners of different faiths. (The Khazars were an Eastern European empire whose ruling class converted from paganism to Judaism for uncertain reasons; Halevi’s account, written long after their conversion, purports to tell how it happened).

In Halevi’s narrative, the king describes his spiritual crisis following a dream where an angel told him that “his intentions were pleasing to God, but his actions were not” (Kogan 2003, 112). Subsequently, the king tries to “make a more zealous effort to observe the rites of his pagan religion than before,” but the angel keeps returning with the same message (Kogan 2003, 112). Eventually, the king realizes “that God was commanding him to seek out those actions that would be pleasing,” and so he gathers representatives of all the different religions for counsel (Kogan 2003, 112). The Jewish response thus serves as a stand-in for Halevi’s view. In his advice to the king, the Jewish philosopher seems almost unconcerned with what belief system the king follows, but only that he act with reason and justice: “the philosopher urges the king, in general terms, to purify his soul of doubts and pursue knowledge of the true realities, while keeping to the path of justice… if he still wishes, he may either create a religion for himself or follow one of the intellectual nomoi [Greek for laws or conventions] of the philosophers” (Kogan 2003, 113). Overall, Halevi defends tolerance of other beliefs as a Jewish value. With the Reconquista and the Crusades as the backdrop of his life, Halevi seems to have felt the rising anti-Jewish persecution of his time deeply – the full title of The Kuzari is Book of Refutation and Proof on Behalf of the Despised Religion.

Although Jewish thought has not had to contend with a notion of freedom of religion, as such, until relatively recently, traces of the idea can be found going back to the medieval period. While ultimately it is hard to argue that unbounded freedom of religion can exist in Judaism, especially when it comes to freedom of religion within Judaism (as is the case for any belief system), Judaism does stand out in its tolerant attitude toward the beliefs of other religions. More broadly, a certain freedom of thought, including a freedom to hold nonconforming religious opinions, can be found in some of the most renowned Jewish scholars’ commitment to rational and diverse inquiry, and overarching emphasis on action over belief.

References:

Chabad. “The Thirteen Principles of Jewish Faith.” n.d. Accessed July 5, 2023. https://www.chabad.org/library/article_cdo/aid/332555/jewish/Maimonides-13-Principles-of-Faith.htm

Firestone, Reuven. “Why Jews Don’t Proselytize.” Renovatio. June 12, 2019. Accessed July 5, 2023. https://renovatio.zaytuna.edu/article/why-jews-dont-proselytize

Frank, Daniel H. “Maimonides and Medieval Jewish Aristotelianism.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 136-156. New York: Cambridge University Press, 2003.

Kogan, Barry S. “Judah Halevi and his use of Philosophy in The Kuzari.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 111-135. New York: Cambridge University Press, 2003.

Korn, Eugene. “Noachide Covenant: Theology and Jewish Law.” Boston College Center for Christian-Jewish Learning. n.d. Accessed July 5, 2023. https://www.bc.edu/content/dam/files/research_sites/cjl/texts/cjrelations/resources/sourcebook/Noahide_covenant.htm

Pessin, Sarah. “Jewish Neoplatonism: Being above Being and Divine Emanation in Solomon ibn Gabirol and Isaac Israeli.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 91-110. New York: Cambridge University Press, 2003.

Shurpin, Yehuda. “Is Hillel’s Teaching the same as the Golden Rule?” n.d. Accessed July 5, 2023.
https://www.chabad.org/library/article_cdo/aid/5410546/jewish/Is-Hillels-Teaching-the-Same-as-the-Golden-Rule.htm

Stroumsa, Sarah. “Saadya and Jewish Kalam.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 71-90. New York: Cambridge University Press, 2003.
}}

Freedom of Religion/History/Country sources/Medieval Judaism

2023-08-04T00:37:49Z

Bmra2018:

{{Right section
|right=Freedom of Religion
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Medieval Judaism
|pageLevel=Breakout
|contents=The concept of freedom of religion in Jewish philosophy initially seems to be a modern innovation, especially since the term does not appear in Jewish holy texts. At the same time, however, there is some sense of a freedom of religion in Jewish thought, in a way that could be said to prefigure the secular conception of that idea.

Fundamentally, Judaism teaches that all people are made in God’s image, and its holy texts emphasize the value of tolerance in multiple places. Perhaps most well-known is Leviticus 19:18, which says “love your neighbor as yourself.” Even more prescriptive is Leviticus 19:34, which commands to the people of Israel that “the stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.” These lines formed the basis for one of the most famous anecdotes in Judaism, where Rabbi Hillel (active in the first century BCE) summed up all of Jewish teaching as “that which is hateful to you, do not do unto your fellow. That is the entire Torah, the rest is commentary” (Shurpin n.d.).

Hillel’s dictum is often referred to as the Golden Rule, which is found in one form or another in every other world faith, but his precise wording is unique. The Golden Rule is typically stated as some variation of “treat others the way you want to be treated,” but Hillel inverts this by giving a negative formulation – i.e., how not to treat others. This phrasing is very revealing when it comes to a Jewish freedom of religion: from this, it is easy to see that one should not mistreat others because of their religious beliefs, because one would not want be treated that way by others.

As with any faith that aims to guide people’s spiritual lives, Judaism necessarily tells its adherents what they should believe, so total freedom of religion (the freedom to believe whatever one wants) is not possible within the faith. Judaism holds that anyone born to a Jewish mother is Jewish, so one doesn’t stop being a Jew if, for example, one declares that one doesn’t believe in God, but such a belief would traditionally be considered incompatible with being a “good” Jew. Possibly the single most foundational Talmudic scholar of the Middle Ages, Moses Maimonides (died 1204), outlined thirteen fundamental principles of the Jewish faith, and all concern different aspects of believing in God and other beliefs; they are customarily recited in the format “I believe…” (Chabad n.d.).

Nevertheless, a fundamental idea of freedom of thought can be seen in traditional Jewish philosophy. As far back as the medieval period, Jewish scholars sampled from as wide a range of schools of thought as possible, including classical, Christian, and Muslim thought, in their pursuit of the ultimate truth. Since the greatest intellectual centers of the medieval Jewish world were Muslim-ruled Spain and the Middle East, Jewish philosophers were especially heavily influenced by their Islamic contemporaries, and by extension, by classical Greek texts that they encountered via Arabic translations. One particularly revealing example is Saadya Gaon, who was active in the Middle East over a century before Maimonides’ birth: “Saadya was not committed to any particular philosophical school. Existing philosophical schools were the heritage of a non-Jewish culture, the rich influence of which Saadya did not try to reject. But being a Jew [in contrast to his Muslim contemporaries], he felt free to collect material gleaned from various sources” (Stroumsa 2003, 80). Evaluations of Saadya Gaon’s body of work suggest an overarching commitment to reason over dogma; to the conviction that “the praiseworthy wise person is he who makes reality his guiding principle and bases his belief thereon,” and that “the reprehensible fool … is he who sets up his personal conviction as his guiding principle, assuming that reality is patterned after his beliefs” (Stroumsa 2003, 76). To him, this free inquiry was unquestionably compatible with Judaism. Another example of this intellectual diffusion is the Jewish Neoplatonists, foremost among them Isaac Israeli (Saadya Gaon’s contemporary) and Solomon ibn Gabirol, who both drew from and refuted the pagan worldview that the original Neoplatonist school promoted (Pessin 2003, 91-106). Maimonides himself may have been more discriminating about drawing from non-Jewish traditions, but the profound influence of Aristotelian philosophy on his thought is nevertheless widely acknowledged: even in the many places where Maimonides disagreed with Aristotle, his “philosophical starting point is Aristotle, and it is from Aristotle that he develops his own philosophical positions” (Frank 2003, 145).

Moreover, a major difference between Judaism and other Abrahamic religions is that Judaism is largely unconcerned with what non-adherents believe, and thus affords a strong degree of freedom of religion to those outside the faith. In contrast to both Christianity and Islam, where it has traditionally been considered incumbent upon those faiths’ adherents to work for the conversion of people of other faiths, Judaism is decidedly not a proselytizing religion, so much so that many modern Jews regard trying to convert others to the faith as inappropriate and disrespectful. Conversion to Judaism is deliberately a difficult and drawn-out process, meant to ensure that those who seek to convert are doing so out of genuine belief.

According to Rabbi Reuven Firestone of Hebrew Union College, the Jewish aversion to proselytization came about by necessity, to protect their communities throughout the long history of Jews living as a persecuted minority in Christian and Muslim states. Starting under the Roman Empire and continuing throughout the medieval period, entire communities could be severely punished for proselytizing to the majority faith: “The rule of survival in each context required that Jews not proselytize, upon pain of death. … Such a length of time [as a minority faith] can deeply acculturate an aversion to engaging in an act that could easily bring death and destruction to the community. So proselytism, while not forbidden anywhere in Judaism, came to feel foreign and strange” (Firestone 2019).

Although only Jews are obligated to follow Jewish law, Judaism does have a separate injunction for non-Jews, known as the Noachide Laws (Korn n.d.). Believed to have been given by God to Noah after the Great Flood, the Talmud regards these as universal laws that are binding on all of Noah’s descendants (all of humanity), thus making them the only instance where Judaism claims to prescribe the behavior of non-adherents.
Five of the seven Noachide Laws concern actions and not beliefs – the command to establish courts to uphold the law, and the prohibitions on murder, theft, sexual immorality, and eating the flesh of a living animal. The remaining two, which prohibit blasphemy and idolatry, are potentially problematic when it comes to respect for foreign religious beliefs: while traditional Jewish philosophy would not have regarded blasphemy and idol worship to be genuine religious expressions, the practical definitions of those terms can easily expand to encompass the sincerely held beliefs of other people and their cultures.

However, it is still very notable that non-Jews who abide by the Noachide Laws are thought to have a share in the World to Come, the closest thing Judaism has to heaven, despite not believing in the Jewish God or following any of the Jewish commandments (Korn n.d.). Therefore, at least implicitly, Judaism recognizes that other faiths also can guide a person to live a good and virtuous life – that action is ultimately more determinative of personal morality than belief – and this idea can also be found in medieval thought. Particularly interesting is the apologia commonly known as The Kuzari, by Spanish Jewish polymath Judah Halevi (died 1141), which is framed as an account of a Khazar king convening a dialogue between practitioners of different faiths. (The Khazars were an Eastern European empire whose ruling class converted from paganism to Judaism for uncertain reasons; Halevi’s account, written long after their conversion, purports to tell how it happened).

In Halevi’s narrative, the king describes his spiritual crisis following a dream where an angel told him that “his intentions were pleasing to God, but his actions were not” (Kogan 2003, 112). Subsequently, the king tries to “make a more zealous effort to observe the rites of his pagan religion than before,” but the angel keeps returning with the same message (Kogan 2003, 112). Eventually, the king realizes “that God was commanding him to seek out those actions that would be pleasing,” and so he gathers representatives of all the different religions for counsel (Kogan 2003, 112). It is the Jewish response (no doubt a stand-in for Halevi’s view) that he ultimately finds the most convincing, thus spurring his conversion. In his advice to the king, the Jewish philosopher seems almost unconcerned with what belief system the king follows, but only that he act with reason and justice: “the philosopher urges the king, in general terms, to purify his soul of doubts and pursue knowledge of the true realities, while keeping to the path of justice… if he still wishes, he may either create a religion for himself or follow one of the intellectual nomoi [Greek for laws or conventions] of the philosophers” (Kogan 2003, 113). Overall, Halevi defends tolerance of other beliefs as a Jewish value. With the Reconquista and the Crusades as the backdrop of his life, Halevi seems to have felt the rising anti-Jewish persecution of his time deeply – the full title of The Kuzari is Book of Refutation and Proof on Behalf of the Despised Religion.

Although Jewish thought has not had to contend with a notion of freedom of religion, as such, until relatively recently, traces of the idea can be found going back to the medieval period. While ultimately it is hard to argue that unbounded freedom of religion can exist in Judaism, especially when it comes to freedom of religion within Judaism (as is the case for any belief system), Judaism does stand out in its tolerant attitude toward the beliefs of other religions. More broadly, a certain freedom of thought, including a freedom to hold nonconforming religious opinions, can be found in some of the most renowned Jewish scholars’ commitment to rational and diverse inquiry, and overarching emphasis on action over belief.

References:

Chabad. “The Thirteen Principles of Jewish Faith.” n.d. Accessed July 5, 2023. https://www.chabad.org/library/article_cdo/aid/332555/jewish/Maimonides-13-Principles-of-Faith.htm

Firestone, Reuven. “Why Jews Don’t Proselytize.” Renovatio. June 12, 2019. Accessed July 5, 2023. https://renovatio.zaytuna.edu/article/why-jews-dont-proselytize

Frank, Daniel H. “Maimonides and Medieval Jewish Aristotelianism.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 136-156. New York: Cambridge University Press, 2003.

Kogan, Barry S. “Judah Halevi and his use of Philosophy in The Kuzari.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 111-135. New York: Cambridge University Press, 2003.

Korn, Eugene. “Noachide Covenant: Theology and Jewish Law.” Boston College Center for Christian-Jewish Learning. n.d. Accessed July 5, 2023. https://www.bc.edu/content/dam/files/research_sites/cjl/texts/cjrelations/resources/sourcebook/Noahide_covenant.htm

Pessin, Sarah. “Jewish Neoplatonism: Being above Being and Divine Emanation in Solomon ibn Gabirol and Isaac Israeli.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 91-110. New York: Cambridge University Press, 2003.

Shurpin, Yehuda. “Is Hillel’s Teaching the same as the Golden Rule?” n.d. Accessed July 5, 2023.
https://www.chabad.org/library/article_cdo/aid/5410546/jewish/Is-Hillels-Teaching-the-Same-as-the-Golden-Rule.htm

Stroumsa, Sarah. “Saadya and Jewish Kalam.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 71-90. New York: Cambridge University Press, 2003.
}}

Freedom of Religion/History/Country sources/Medieval Judaism

2023-08-04T00:32:21Z

Bmra2018:

{{Right section
|right=Freedom of Religion
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Medieval Judaism
|pageLevel=Breakout
|contents=The concept of freedom of religion in Jewish philosophy initially seems to be a modern innovation, especially since the term does not appear in Jewish holy texts. At the same time, however, there is some sense of a freedom of religion in Jewish thought, in a way that could be said to prefigure the secular conception of that idea.

Fundamentally, Judaism teaches that all people are made in God’s image, and its holy texts emphasize the value of tolerance in multiple places. Perhaps most well-known is Leviticus 19:18, which says “love your neighbor as yourself.” Even more prescriptive is Leviticus 19:34, which commands to the people of Israel that “the stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.” These lines formed the basis for one of the most famous anecdotes in Judaism, where Rabbi Hillel (active in the first century BCE) summed up all of Jewish teaching as “that which is hateful to you, do not do unto your fellow. That is the entire Torah, the rest is commentary” (Shurpin n.d.).

Hillel’s dictum is often referred to as the Golden Rule, which is found in one form or another in every other world faith, but his precise wording is unique. The Golden Rule is typically stated as some variation of “treat others the way you want to be treated,” but Hillel inverts this by giving a negative formulation – i.e., how not to treat others. This phrasing is very revealing when it comes to a Jewish freedom of religion: from this, it is easy to see that one should not mistreat others because of their religious beliefs, because one would not want be treated that way by others.

As with any faith that aims to guide people’s spiritual lives, Judaism necessarily tells its adherents what they should believe, so total freedom of religion (the freedom to believe whatever one wants) is not possible within the faith. Judaism holds that anyone born to a Jewish mother is Jewish, so one doesn’t stop being a Jew if, for example, one declares that one doesn’t believe in God, but such a belief would traditionally be considered incompatible with being a “good” Jew. Possibly the single most foundational Talmudic scholar of the Middle Ages, Moses Maimonides (died 1204), outlined thirteen fundamental principles of the Jewish faith, and all concern different aspects of believing in God and other beliefs; they are customarily recited in the format “I believe…” (Chabad n.d.).

Nevertheless, a fundamental idea of freedom of thought can be seen in traditional Jewish philosophy. As far back as the medieval period, Jewish scholars sampled from as wide a range of schools of thought as possible, including classical, Christian, and Muslim thought, in their pursuit of the ultimate truth. Since the greatest intellectual centers of the medieval Jewish world were Muslim-ruled Spain and the Middle East, Jewish philosophers were especially heavily influenced by their Islamic contemporaries, and by extension, by classical Greek texts that they encountered via Arabic translations. One particularly revealing example is Saadya Gaon, who was active in the Middle East over a century before Maimonides’ birth: “Saadya was not committed to any particular philosophical school. Existing philosophical schools were the heritage of a non-Jewish culture, the rich influence of which Saadya did not try to reject. But being a Jew [in contrast to his Muslim contemporaries], he felt free to collect material gleaned from various sources” (Stroumsa 2003, 80). Evaluations of Saadya Gaon’s body of work suggest an overarching commitment to reason over dogma; to the conviction that “the praiseworthy wise person is he who makes reality his guiding principle and bases his belief thereon,” and that “the reprehensible fool … is he who sets up his personal conviction as his guiding principle, assuming that reality is patterned after his beliefs” (Stroumsa 2003, 76). To him, this free inquiry was unquestionably compatible with Judaism. Another example of this intellectual diffusion is the Jewish Neoplatonists, foremost among them Isaac Israeli (Saadya Gaon’s contemporary) and Solomon ibn Gabirol, who both drew from and refuted the pagan worldview that the original Neoplatonist school promoted (Pessin 2003, 91-106). Maimonides himself may have been more discriminating about drawing from non-Jewish traditions, but the profound influence of Aristotelian philosophy on his thought is nevertheless widely acknowledged: even in the many places where Maimonides disagreed with Aristotle, his “philosophical starting point is Aristotle, and it is from Aristotle that he develops his own philosophical positions” (Frank 2003, 145).

Moreover, a major difference between Judaism and other Abrahamic religions is that Judaism is largely unconcerned with what non-adherents believe, and thus affords a strong degree of freedom of religion to those outside the faith. In contrast to both Christianity and Islam, where it has traditionally been considered incumbent upon those faiths’ adherents to work for the conversion of people of other faiths, Judaism is decidedly not a proselytizing religion, so much so that many modern Jews regard trying to convert others to the faith as inappropriate and disrespectful. Conversion to Judaism is deliberately a difficult and drawn-out process, meant to ensure that those who seek to convert are doing so out of genuine belief.

According to Rabbi Reuven Firestone of Hebrew Union College, the Jewish aversion to proselytization came about by necessity, to protect their communities throughout the long history of Jews living as a persecuted minority in Christian and Muslim states. Starting under the Roman Empire and continuing throughout the medieval period, entire communities could be severely punished for proselytizing to the majority faith: “The rule of survival in each context required that Jews not proselytize, upon pain of death. … Such a length of time [as a minority faith] can deeply acculturate an aversion to engaging in an act that could easily bring death and destruction to the community. So proselytism, while not forbidden anywhere in Judaism, came to feel foreign and strange” (Firestone 2019).

Although only Jews are obligated to follow Jewish law, Judaism does have a separate injunction for non-Jews, known as the Noachide Laws (Korn n.d.). Believed to have been given by God to Noah after the Great Flood, the Talmud regards these as universal laws that are binding on all of Noah’s descendants (all of humanity), thus making them the only instance where Judaism claims to prescribe the behavior of non-adherents.
Five of the seven Noachide Laws concern actions and not beliefs – the command to establish courts to uphold the law, and the prohibitions on murder, theft, sexual immorality, and eating the flesh of a living animal. The remaining two, which prohibit blasphemy and idolatry, are potentially problematic when it comes to respect for foreign religious beliefs: while traditional Jewish philosophy would not have regarded blasphemy and idol worship to be genuine religious expressions, the practical definitions of those terms can easily expand to encompass the sincerely held beliefs of other people and their cultures.

However, it is still very notable that non-Jews who abide by the Noachide Laws are thought to have a share in the World to Come, the closest thing Judaism has to heaven, despite not believing in the Jewish God or following any of the Jewish commandments (Korn n.d.). Therefore, at least implicitly, Judaism recognizes that other faiths also can guide a person to live a good and virtuous life – that action is ultimately more determinative of personal morality than belief – and this idea can also be found in medieval thought. Particularly interesting is the apologia commonly known as The Kuzari, by Spanish Jewish polymath Judah Halevi (died 1141), which is framed as an account of a Khazar king convening a dialogue between practitioners of different faiths. (The Khazars were an Eastern European empire whose ruling class converted from paganism to Judaism for uncertain reasons; Halevi’s account, written centuries after their conversion, purports to tell how it happened).
In Halevi’s narrative, the king describes his spiritual crisis following a dream where an angel told him that “his intentions were pleasing to God, but his actions were not” (Kogan 2003, 112). Subsequently, the king tries to “make a more zealous effort to observe the rites of his pagan religion than before,” but the angel keeps returning with the same message (Kogan 2003, 112). Eventually, the king realizes “that God was commanding him to seek out those actions that would be pleasing,” and so he gathers representatives of all the different religions for counsel (Kogan 2003, 112). It is the Jewish response (no doubt a stand-in for Halevi’s view) that he ultimately finds the most convincing, thus spurring his conversion. In his advice to the king, the Jewish philosopher seems almost unconcerned with what belief system the king follows, but only that he act with reason and justice: “the philosopher urges the king, in general terms, to purify his soul of doubts and pursue knowledge of the true realities, while keeping to the path of justice… if he still wishes, he may either create a religion for himself or follow one of the intellectual nomoi [Greek for laws or conventions] of the philosophers” (Kogan 2003, 113). Overall, Halevi defends tolerance of other beliefs as a Jewish value. With the Reconquista and the Crusades as the backdrop of his life, Halevi seems to have felt the rising anti-Jewish persecution of his time deeply – the full title of The Kuzari is Book of Refutation and Proof on Behalf of the Despised Religion.

Although Jewish thought has not had to contend with a notion of freedom of religion, as such, until relatively recently, traces of the idea can be found going back to the medieval period. While ultimately it is hard to argue that unbounded freedom of religion can exist in Judaism, especially when it comes to freedom of religion within Judaism (as is the case for any belief system), Judaism does stand out in its tolerant attitude toward the beliefs of other religions. More broadly, a certain freedom of thought, including a freedom to hold nonconforming religious opinions, can be found in some of the most renowned Jewish scholars’ commitment to rational and diverse inquiry, and overarching emphasis on action over belief.

References:

Chabad. “The Thirteen Principles of Jewish Faith.” n.d. Accessed July 5, 2023. https://www.chabad.org/library/article_cdo/aid/332555/jewish/Maimonides-13-Principles-of-Faith.htm

Firestone, Reuven. “Why Jews Don’t Proselytize.” Renovatio. June 12, 2019. Accessed July 5, 2023. https://renovatio.zaytuna.edu/article/why-jews-dont-proselytize

Frank, Daniel H. “Maimonides and Medieval Jewish Aristotelianism.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 136-156. New York: Cambridge University Press, 2003.

Kogan, Barry S. “Judah Halevi and his use of Philosophy in The Kuzari.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 111-135. New York: Cambridge University Press, 2003.

Korn, Eugene. “Noachide Covenant: Theology and Jewish Law.” Boston College Center for Christian-Jewish Learning. n.d. Accessed July 5, 2023. https://www.bc.edu/content/dam/files/research_sites/cjl/texts/cjrelations/resources/sourcebook/Noahide_covenant.htm

Pessin, Sarah. “Jewish Neoplatonism: Being above Being and Divine Emanation in Solomon ibn Gabirol and Isaac Israeli.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 91-110. New York: Cambridge University Press, 2003.

Shurpin, Yehuda. “Is Hillel’s Teaching the same as the Golden Rule?” n.d. Accessed July 5, 2023.
https://www.chabad.org/library/article_cdo/aid/5410546/jewish/Is-Hillels-Teaching-the-Same-as-the-Golden-Rule.htm

Stroumsa, Sarah. “Saadya and Jewish Kalam.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 71-90. New York: Cambridge University Press, 2003.
}}

Freedom of Religion/History/Country sources/Medieval Judaism

2023-08-04T00:29:46Z

Bmra2018: Created page with "{{Right section |right=Freedom of Religion |section=Philosophical Origins |question=Tradition contributions |questionHeading=What have religious and philosophical traditions contributed to our understanding of this right? |breakout=Medieval Judaism |pageLevel=Breakout |contents=The concept of freedom of religion in Jewish philosophy initially seems to be a modern innovation, especially since the term does not appear in Jewish holy texts. At the same time, however, there..."

{{Right section
|right=Freedom of Religion
|section=Philosophical Origins
|question=Tradition contributions
|questionHeading=What have religious and philosophical traditions contributed to our understanding of this right?
|breakout=Medieval Judaism
|pageLevel=Breakout
|contents=The concept of freedom of religion in Jewish philosophy initially seems to be a modern innovation, especially since the term does not appear in Jewish holy texts. At the same time, however, there is some sense of a freedom of religion in Jewish thought, in a way that could be said to prefigure the secular conception of that idea.
Fundamentally, Judaism teaches that all people are made in God’s image, and its holy texts emphasize the value of tolerance in multiple places. Perhaps most well-known is Leviticus 19:18, which says “love your neighbor as yourself.” Even more prescriptive is Leviticus 19:34, which commands to the people of Israel that “the stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.” These lines formed the basis for one of the most famous anecdotes in Judaism, where Rabbi Hillel (active in the first century BCE) summed up all of Jewish teaching as “that which is hateful to you, do not do unto your fellow. That is the entire Torah, the rest is commentary” (Shurpin n.d.).
Hillel’s dictum is often referred to as the Golden Rule, which is found in one form or another in every other world faith, but his precise wording is unique. The Golden Rule is typically stated as some variation of “treat others the way you want to be treated,” but Hillel inverts this by giving a negative formulation – i.e., how not to treat others. This phrasing is very revealing when it comes to a Jewish freedom of religion: from this, it is easy to see that one should not mistreat others because of their religious beliefs, because one would not want be treated that way by others.
As with any faith that aims to guide people’s spiritual lives, Judaism necessarily tells its adherents what they should believe, so total freedom of religion (the freedom to believe whatever one wants) is not possible within the faith. Judaism holds that anyone born to a Jewish mother is Jewish, so one doesn’t stop being a Jew if, for example, one declares that one doesn’t believe in God, but such a belief would traditionally be considered incompatible with being a “good” Jew. Possibly the single most foundational Talmudic scholar of the Middle Ages, Moses Maimonides (died 1204), outlined thirteen fundamental principles of the Jewish faith, and all concern different aspects of believing in God and other beliefs; they are customarily recited in the format “I believe…” (Chabad n.d.).
Nevertheless, a fundamental idea of freedom of thought can be seen in traditional Jewish philosophy. As far back as the medieval period, Jewish scholars sampled from as wide a range of schools of thought as possible, including classical, Christian, and Muslim thought, in their pursuit of the ultimate truth. Since the greatest intellectual centers of the medieval Jewish world were Muslim-ruled Spain and the Middle East, Jewish philosophers were especially heavily influenced by their Islamic contemporaries, and by extension, by classical Greek texts that they encountered via Arabic translations. One particularly revealing example is Saadya Gaon, who was active in the Middle East over a century before Maimonides’ birth: “Saadya was not committed to any particular philosophical school. Existing philosophical schools were the heritage of a non-Jewish culture, the rich influence of which Saadya did not try to reject. But being a Jew [in contrast to his Muslim contemporaries], he felt free to collect material gleaned from various sources” (Stroumsa 2003, 80). Evaluations of Saadya Gaon’s body of work suggest an overarching commitment to reason over dogma; to the conviction that “the praiseworthy wise person is he who makes reality his guiding principle and bases his belief thereon,” and that “the reprehensible fool … is he who sets up his personal conviction as his guiding principle, assuming that reality is patterned after his beliefs” (Stroumsa 2003, 76). To him, this free inquiry was unquestionably compatible with Judaism. Another example of this intellectual diffusion is the Jewish Neoplatonists, foremost among them Isaac Israeli (Saadya Gaon’s contemporary) and Solomon ibn Gabirol, who both drew from and refuted the pagan worldview that the original Neoplatonist school promoted (Pessin 2003, 91-106). Maimonides himself may have been more discriminating about drawing from non-Jewish traditions, but the profound influence of Aristotelian philosophy on his thought is nevertheless widely acknowledged: even in the many places where Maimonides disagreed with Aristotle, his “philosophical starting point is Aristotle, and it is from Aristotle that he develops his own philosophical positions” (Frank 2003, 145).
Moreover, a major difference between Judaism and other Abrahamic religions is that Judaism is largely unconcerned with what non-adherents believe, and thus affords a strong degree of freedom of religion to those outside the faith. In contrast to both Christianity and Islam, where it has traditionally been considered incumbent upon those faiths’ adherents to work for the conversion of people of other faiths, Judaism is decidedly not a proselytizing religion, so much so that many modern Jews regard trying to convert others to the faith as inappropriate and disrespectful. Conversion to Judaism is deliberately a difficult and drawn-out process, meant to ensure that those who seek to convert are doing so out of genuine belief.
According to Rabbi Reuven Firestone of Hebrew Union College, the Jewish aversion to proselytization came about by necessity, to protect their communities throughout the long history of Jews living as a persecuted minority in Christian and Muslim states. Starting under the Roman Empire and continuing throughout the medieval period, entire communities could be severely punished for proselytizing to the majority faith: “The rule of survival in each context required that Jews not proselytize, upon pain of death. … Such a length of time [as a minority faith] can deeply acculturate an aversion to engaging in an act that could easily bring death and destruction to the community. So proselytism, while not forbidden anywhere in Judaism, came to feel foreign and strange” (Firestone 2019).
Although only Jews are obligated to follow Jewish law, Judaism does have a separate injunction for non-Jews, known as the Noachide Laws (Korn n.d.). Believed to have been given by God to Noah after the Great Flood, the Talmud regards these as universal laws that are binding on all of Noah’s descendants (all of humanity), thus making them the only instance where Judaism claims to prescribe the behavior of non-adherents.
Five of the seven Noachide Laws concern actions and not beliefs – the command to establish courts to uphold the law, and the prohibitions on murder, theft, sexual immorality, and eating the flesh of a living animal. The remaining two, which prohibit blasphemy and idolatry, are potentially problematic when it comes to respect for foreign religious beliefs: while traditional Jewish philosophy would not have regarded blasphemy and idol worship to be genuine religious expressions, the practical definitions of those terms can easily expand to encompass the sincerely held beliefs of other people and their cultures.
However, it is still very notable that non-Jews who abide by the Noachide Laws are thought to have a share in the World to Come, the closest thing Judaism has to heaven, despite not believing in the Jewish God or following any of the Jewish commandments (Korn n.d.). Therefore, at least implicitly, Judaism recognizes that other faiths also can guide a person to live a good and virtuous life – that action is ultimately more determinative of personal morality than belief – and this idea can also be found in medieval thought. Particularly interesting is the apologia commonly known as The Kuzari, by Spanish Jewish polymath Judah Halevi (died 1141), which is framed as an account of a Khazar king convening a dialogue between practitioners of different faiths. (The Khazars were an Eastern European empire whose ruling class converted from paganism to Judaism for uncertain reasons; Halevi’s account, written centuries after their conversion, purports to tell how it happened).
In Halevi’s narrative, the king describes his spiritual crisis following a dream where an angel told him that “his intentions were pleasing to God, but his actions were not” (Kogan 2003, 112). Subsequently, the king tries to “make a more zealous effort to observe the rites of his pagan religion than before,” but the angel keeps returning with the same message (Kogan 2003, 112). Eventually, the king realizes “that God was commanding him to seek out those actions that would be pleasing,” and so he gathers representatives of all the different religions for counsel (Kogan 2003, 112). It is the Jewish response (no doubt a stand-in for Halevi’s view) that he ultimately finds the most convincing, thus spurring his conversion. In his advice to the king, the Jewish philosopher seems almost unconcerned with what belief system the king follows, but only that he act with reason and justice: “the philosopher urges the king, in general terms, to purify his soul of doubts and pursue knowledge of the true realities, while keeping to the path of justice… if he still wishes, he may either create a religion for himself or follow one of the intellectual nomoi [Greek for laws or conventions] of the philosophers” (Kogan 2003, 113). Overall, Halevi defends tolerance of other beliefs as a Jewish value. With the Reconquista and the Crusades as the backdrop of his life, Halevi seems to have felt the rising anti-Jewish persecution of his time deeply – the full title of The Kuzari is Book of Refutation and Proof on Behalf of the Despised Religion.
Although Jewish thought has not had to contend with a notion of freedom of religion, as such, until relatively recently, traces of the idea can be found going back to the medieval period. While ultimately it is hard to argue that unbounded freedom of religion can exist in Judaism, especially when it comes to freedom of religion within Judaism (as is the case for any belief system), Judaism does stand out in its tolerant attitude toward the beliefs of other religions. More broadly, a certain freedom of thought, including a freedom to hold nonconforming religious opinions, can be found in some of the most renowned Jewish scholars’ commitment to rational and diverse inquiry, and overarching emphasis on action over belief.
References:
Chabad. “The Thirteen Principles of Jewish Faith.” n.d. Accessed July 5, 2023. https://www.chabad.org/library/article_cdo/aid/332555/jewish/Maimonides-13-Principles-of-Faith.htm
Firestone, Reuven. “Why Jews Don’t Proselytize.” Renovatio. June 12, 2019. Accessed July 5, 2023. https://renovatio.zaytuna.edu/article/why-jews-dont-proselytize
Frank, Daniel H. “Maimonides and Medieval Jewish Aristotelianism.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 136-156. New York: Cambridge University Press, 2003.
Kogan, Barry S. “Judah Halevi and his use of Philosophy in The Kuzari.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 111-135. New York: Cambridge University Press, 2003.
Korn, Eugene. “Noachide Covenant: Theology and Jewish Law.” Boston College Center for Christian-Jewish Learning. n.d. Accessed July 5, 2023. https://www.bc.edu/content/dam/files/research_sites/cjl/texts/cjrelations/resources/sourcebook/Noahide_covenant.htm
Pessin, Sarah. “Jewish Neoplatonism: Being above Being and Divine Emanation in Solomon ibn Gabirol and Isaac Israeli.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 91-110. New York: Cambridge University Press, 2003.
Shurpin, Yehuda. “Is Hillel’s Teaching the same as the Golden Rule?” n.d. Accessed July 5, 2023. https://www.chabad.org/library/article_cdo/aid/5410546/jewish/Is-Hillels-Teaching-the-Same-as-the-Golden-Rule.htm
Stroumsa, Sarah. “Saadya and Jewish Kalam.” In The Cambridge Companion to Medieval Jewish Philosophy, edited by Daniel H. Frank and Oliver Leaman, 71-90. New York: Cambridge University Press, 2003.
}}